Felons not legally required to register their firearms

[aviator41]

and this is why I added my edit.

 

[Dave70968]

They can't make a law retroactive. In your example, 'they' would require current owners to register as well as any future owners. It's called an 'Ex Post Facto' law - and it can't happen under our constitution.

In the United States, the Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution

Edit: Because I know someone will jump on this. yes, there are a few situations where ex post facto laws are legal and have taken effect. the particular scenario outline by ripnbst is what I refer to. They cannot make an ex post facto law that requires all current owners to surrender 'assault' weapons - whatever their definition becomes for those.

That's not what ex post facto means. The ex post facto proision means that they can't pass a law that makes possession prior to passage illegal. They absolutely can pass an outright ban, effective tomorrow (the Second Amendment notwithstanding), and jail you for noncompliance; they just can't pass a law tomorrow that criminalizes what you did today.

As to sex offender registries--or, for gun owners, the Lautenberg amendment--the courts have ruled that those didn't criminalize behavior occurring prior to passage, and therefore didn't constitute an ex post facto law. Yes, they increased the punishment, but that's not the same as making a non-criminal act illegal, or so say the courts.

 

[Dave70968]

Unfortunately, Haynes is no longer good law. Congress amended the statute to "fix" the "loophole*" and the courts have responded accordingly:

The revised statute explicitly states that no information or evidence provided in compliance with the registration or transfer provisions of the Act can be used, directly or indirectly, as evidence against the registrant or applicant ‘in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence.'

United States v. Freed, 401 U.S. 601, 604, 91 S. Ct. 1112, 1115, 28 L. Ed. 2d 356 (1971)

By granting immunity, the Fifth Amendment issue is avoided. There's also an additional quirk: the revised law puts the onus on the transferor, not the transferee, to complete the registration. Again, this avoids the Fifth Amendment issue by not requiring the (prohibited) transferee to register, but still allows him to be prosecuted for possession of an unregistered item.

We conclude that the amended Act does not violate the Self-Incrimination Clause of the Fifth Amendment which provides that no person ‘shall be compelled in any criminal case to be a witness against himself.’ As noted, a lawful transfer of a firearm may be accomplished only if it is already registered. The transferor-not the transferee-does the registering. The transferor pays the transfer tax and receives a stamp denoting payment which he affixes to the application submitted to the Internal Revenue Service. The transferor must identify himself, describe the firearm to be transferred, and the name and address of the transferee. In addition, the application must be supported by the photograph and fingerprints of the transferee and by a certificate of a local or federal law enforcement official that he is satisfied that the photograph and fingerprints are those of the transferee and that the weapon is intended for lawful uses. Only after receipt of the approved application form is it lawful for the transferor to hand the firearm over to the transferee. At that time he is to give the approved application to the transferee. As noted, the Solicitor General advises us that the information in the hands of Internal Revenue Service, as a matter of practice, is not available to state or other federal authorities and, as a matter of law, cannot be used as evidence in a criminal proceeding with respect to a prior or concurrent violation of law.

United States v. Freed, 401 U.S. 601, 605-06, 91 S. Ct. 1112, 1116, 28 L. Ed. 2d 356 (1971)

Whether you believe IRS information is confidential is up to you; still, the courts have held (and thus, you will be prosecuted under the theory, be it right or wrong) that the law as it presently exists is not in conflict with the Fifth Amendment.




* Let us not forget the AR-pattern rifles that were permissible under the AWB because they met the "loophole" of not having enough of the banned features. loophole (noun, euphemistic): complying with the law as written.

 

[Dave70968]

Incidentally, Freed identifies, but does not repudiate, a much greater risk to liberty:

We also conclude that the District Court erred in dismissing the indictment for absence of an allegation of scienter.The Act requires no specific intent or knowledge that the hand grenades were unregistered. It makes it unlawful for any person ‘to receive or possess a firearm which is not registered to him.'12 By the lower court decisions at the time that requirement was written into the Act the only knowledge required to be proved was knowledge that the instrument possessed was a firearm. See Sipes v. United States, 8 Cir., 321 F.2d 174, 179, and cases cited.The presence of a ‘vicious will’ or mens rea (Morissette v. United States, 342 U.S. 246, 251, 72 S.Ct. 240, 243, 96 L.Ed. 288) was long a requirement of criminal responsibility. But the list of exceptions grew, especially in the expanding regulatory area involving activities affecting public health, safety, and welfare.

United States v. Freed, 401 U.S. 601, 607, 91 S. Ct. 1112, 1117, 28 L. Ed. 2d 356 (1971)

Scienter (Latin: knowledge), or mens rea (Latin: guilty mind) requires that the accused knew of the nature of his actions. It doesn't require that he knows the law--knows that his actions are illegal--just that he knows what he's doing. There has been a trend in criminal law toward dismissing the mens rea requirement, thus making the crime a strict liability offense. To boil it down to its simplest form, if possession of cocaine is a crime, and mens rea (intent to possess, in this case) is not necessary, then you would be guilty if somebody stuck a packet of coke to the inside of your bumper while you were safely asleep. No intent, no knowledge, but you were in possession, whether you knew it or not. In the context of the cases cited, the courts have ruled that possession of an unregistered firearm subject to the NFA--even if the transferee is unaware that the transferor has not registered it to the transferee, as is the transferor's legal duty--is a felony. Put bluntly, if the other guy doesn't do the paperwork, you get to cool your heels in the graybar.

Just ponder that for a while.