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Prison guard tower by Rennett Stowe is licensed under CC 2.0

In a previous post, I discussed the National Firearms Act of 1934. The Act originally required that anyone acquiring or possessing a Title II weapon register it with the United States government. In 1968, however, the Supreme Court ruled in Haynes v. United States that the registration requirement was unconstitutional on Fifth Amendment grounds. There, the Court found that requiring a person in illegal possession of a weapon to register that weapon amounts to compelled self-incrimination.

The Court’s ruling effectively gutted the NFA, and so later that year Congress refashioned the registration requirements to comply with the Court’s ruling. In amending the law, Congress removed the requirement that possessors of Title II weapons register them and instead subjected only those who may legally make, manufacture, or import firearms to the NFA’s registration requirements. Ironically, this has created a situation where those who may not legally make, manufacture, or import firearms but do so anyway are exempt from the gun registration requirements.

This is of little practical consequence on the federal level, as unlawful possession of a Title II weapon is still a serious offense. It simply creates a legally oddity, in that a convicted felon that makes, manufactures, or imports a Title II weapon cannot be prosecuted for failing to register the weapon, while otherwise law-abiding citizens can be. Since individuals merely possessing a Title II weapon are not required to register the weapon regardless, however, this change is more a legal curiosity than a significant loophole.

Congress also amended the law by prohibiting the use of any information from an NFA application or registration as evidence in a criminal proceeding involving a crime committed prior to or concurrent with the filing of the application or registration. This helped to further address the Fifth Amendment concerns.

Generally speaking, when you purchase a Title II weapon, the weapon is already registered, and the seller merely transfers the registration into your name. In 1971, the Supreme Court ruled in United States v. Freed that the amendment to the National Firearms Act brought the law into compliance with constitutional requirements.

As an aside the Supreme Court’s decision can frustrate state schemes for gun registration. Haynes v. United States is still good law, and its prohibition against requiring those in illegal possession of a firearm to register it still applies. Ironically, of course, this can create a situation where a registration scheme requiring only law-abiding citizens to register their guns is able to withstand constitutional scrutiny. Such a scenario would further call into question the already dubious benefit of a gun registration scheme.

See Also:

The National Firearms Act of 1934
Gun Trusts

Categories: Legal Blog


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