The biggest loophole they missed in sb281

[Ab_Normal]

The criminal compliance loophole.

Like the current criminals are going to go ahead and start following these new laws.

 

[Markp]

The criminal compliance loophole.

Like the current criminals are going to go ahead and start following these new laws.

Sorry, they are exempt from incriminating themselves - See the 5th Amendment and the non-registration of NFA items (ya, someone got away with this, they could not be required to incriminate themselves.) I will have to look up the case again!

http://www.firearmsandliberty.com/cramer.haynes.html

In Haynes v. U.S. (1968), a 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. While the Court acknowledged that there were circumstances where a person might register such a weapon without having violated the prohibition on illegal possession or transfer, both the prosecution and the Court acknowledged such circumstances were "uncommon." The Court concluded:

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.

This 8-1 decision (with only Chief Justice Earl Warren dissenting) is, depending on your view of Fifth Amendment, either a courageous application of the intent of the self-incrimination clause, or evidence that the Supreme Court had engaged in reductio ad absurdum of the Fifth Amendment. Under this ruling, a person illegally possessing a firearm, under either federal or state law, could not be punished for failing to register it.

 

[Merlin]

The criminal compliance loophole.

Like the current criminals are going to go ahead and start following these new laws.

Don't be ridicules. Sure the criminals will follow the new laws. That's why there is a law against things like murder and bank robbery. So people will not do any of that. ....Ho wait.....

 

[Armati]

Sorry, they are exempt from incriminating themselves...

Brilliant! But to your knowledge, has anyone else successfully used this defense?