Fifth Amendment, Haynes, and 922(o)

There is a Supreme Court decision involving the National firearms act that was decided in 1968. In that case, US v Haynes, Miles Edward Haynes appealed his conviction for unlawful possession of an unregistered short-barreled shotgun. His argument was ingenious: since he was a convicted felon at the time he was arrested on the shotgun charge, he could not legally possess a firearm. Haynes further argued that for a convicted felon to register a gun, especially a short-barreled shotgun, was effectively an announcement to the government that he was breaking the law. If he did register it, as 26 U.S.C. sec.5841 required, he was incriminating himself; but if he did not register it, the government would punish him for possessing an unregistered firearm -- a violation of 26 U.S.C. sec.5851. Consequently, his Fifth Amendment protection against self- incrimination ("No person... shall be compelled in any criminal case to be a witness against himself") was being violated -- he would be punished if he registered it, and punished if he did not register it.

The Supreme Court agreed:

We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under sec.5841 or for possession of an unregistered firearm under sec.5851.

Later that same year, in the Ohio case State v. Schutzler (1969), Gale Leroy Schutzler attempted to quash an indictment for failure to register a submachine gun in accordance with O.R.C. sec.2923.04, which required registration of automatic weapons. At the original trial, Schutzler argued that the registration requirement violated his Fifth Amendment rights, based on Haynes. On appeal, the Court of Common Pleas did not agree with any of Schutzler's arguments, including his citation of the Fifth Amendment. Where the Haynes decision was based on the fact that Haynes was an ex-felon, and therefore his possession of a sawed-off shotgun was illegal, Schutzler was not breaking the law by possession; his only violation of the law was his failure to register the submachine gun and post a $5000 bond. Had he been an ex-felon, the Haynes decision would have protected him. Because he was not a convicted criminal, he did not receive the benefit of the Fifth Amendment's protection.

The law in the United States (18 USC 922(o)) is that all machine guns (defined as any gun which fires more than one shot per operation of the trigger) must be registered with the Federal Government, and a $200 tax paid upon transferring it to a new owner. However, Congress has also refused to allow anyone to transfer a machine gun that was not already legally possessed prior to May 19, 1986.

How is this applicable today? Well, the courts ruled that Haynes had no way to legally escape his quandry: He was in possession of a sawed off shotgun, and whether her registered it or not, he would run afoul of the law. A person who was not a convicted felon could escape self incrimination merely by registering his weapon and paying the fee. The place where Haynes found himself is the exact position that a person who owns a machine gun manufactured after May 19, 1986 finds himself: If he registers the weapon, he incriminates himself, and if he fails to register the weapon, he is still guilty of a crime.

I wonder if any lawyers have looked at this one...