Earl Warren: No. 236, Miles Edward Haynes, Petitioner, versus United States. Mr. Wright.
Charles Alan Wright: Mr. Chief Justice, may it please the Court. Yesterday in the course of the Marchetti argument, someone asked Mr. Zeldes whether he regarded the Firearms Act as involving the same considerations as to wagering taxes and I was interested in that question because it's necessary for me to endeavor to persuade you that they're both unconstitutional. I do think they involve somewhat different arguments. The statutory schemes are totally dissimilar and as a result, I think, the considerations for the Court here are rather different from those involved in Marchetti and Grosso. Indeed, as the party has developed the issues in their briefs, it would seem that really all that is involved here is a question of statutory construction because we are not fundamentally in disagreement on the constitutional issue except for its ubiquity use restriction argument, the Government concedes that if we have construed 5841, 5851 correctly that result is incriminatory. It takes issue with our reading of those two sections of these very complicated and poorly drafted statutes. I would like to go first to the second of the questions discussed by the United States and assume for the moment as every court, every lower court that has passed on the question has held that the requirement of registration in 5841 is itself unconstitutional. I'd personally come back to argue that rather than simply to assume that at a later point. If that is so, can you, as again the lower courts have held, nevertheless prosecute a person for possession of a firearm that has not been registered? Here in petitioner's view that the answer is reasonably clear and the answer is one, apparently and importantly as statutory construction. The United States reads 5851 as meaning that you can be prosecuted for possession of an unregistered firearm only if it is not been registered at anytime by any person so that if some prior possessor has registered it, they say that the present possessor is under no duty to register and therefore we're -- we aren't incriminating him or when we prosecuted. This seems to me an extremely difficult reading of the statute to take in the light especially of the Treasury Regulation No. 179120, that requires registration unless it is registered to him. It doesn't say that it's enough that it has been registered to somebody else. It says he has to register unless it is registered to him. And here, I think, the registration faithfully carries out the statutory purpose. The provisions about 5841 seem to look to the present possessor. They -- the first section -- sentence of 5841 says that every possessor has to register, but then the exception in the second sentence, you're not required to register with respect to a firearm which such a person acquired by transfer, importation or which such person made if the provisions of the chapter applied and if the provisions required thereto were complied with. The focus here is on the possessor. He is the "such person" to whom the statute is referring and it is talking about his acquisition by transfer or his making. The -- it seems to -- in view of the petitioner that the United States has no support in the cases except the very recent ones that have drawn these torts distinction for the proposition that prior registration by somebody else dispenses with the requirement that the present possessor register.
Abe Fortas: Professor Wright, I have a -- and I had a difficulty with your argument in this respect perhaps because I don't understand it. Let me put a simple proposition to you. Let's assume that the law says that it is a crime to drive an automobile in the District of Columbia with an expired license plate. Let's assume that the -- after March 31, 1967 I drove my automobile. Now is it your position that thereafter, the -- I could not be compelled to buy a license or a new license for my automobile because that would incriminate me on account if I had possession of the automobile and drove it after a license had expired which is a crime.
Charles Alan Wright: I don't understand, Mr. Justice Fortas how buying a new license would be an admission that you had driven the car at the time when your old license had expired.
Abe Fortas: Well, under this -- under the Firearms Act, all you're saying as I understand it, when you register as I am now in possession of the firearm, is that right?
Charles Alan Wright: Yes, that's right.
Abe Fortas: Just as when I buy a new automobile license, what I'm saying is that I'm in possession of an automobile and I intend to drive it on the streets of the District of Columbia.
Charles Alan Wright: I should --
Abe Fortas: But that's where I have -- had a difficulty in understanding what I believe is the -- your basic argument, that is to say that if I register a firearm and say that I now possess the firearm, what respect does that imply that I have been in possession of it unlawfully here before you. You have to have it in order to possess it, in order to apply for a license. That's point one. And point two, even if there might be some admission that for a moment of time or a month of time or a year of time I had it in my hot hands without having registered it, does that relieve me of the need to license it? A man has to have it for sometime before he can apply for a license I assume.
Charles Alan Wright: I suggest, Mr. Justice Fortas, that a closer analogy would be if you had a local statute providing that everyone who has stolen a car shall be required to buy a licensed plate for it.
Abe Fortas: Well, you like that better and I like mine better.
Charles Alan Wright: Well, but mine, I -- with great respect, it seems to me to come closer to the statutory pattern of the National Firearms Act.
Abe Fortas: That's exactly the point of difference, I -- you'd have to show me a little more clearly than I now see it that that is in fact the pattern in the Firearms Act. Firearms Act does not as I see it say that you must register only those firearms which are in your possession unlawfully by a theft or otherwise. It doesn't say that.
Charles Alan Wright: I think, fairly read, it does with one minor exception because it says that if you acquire this lawful, if the transfer provisions of the law were complied with when it was transferred to you or if you made it and you complied with the making provisions of the law, then you do not have to register.
Abe Fortas: And you're saying, because of the negative implication or the negative effect of that that the law has to be read as if it meant that you register only if it's in your possession unlawfully that is to say that previous owners have not register yet. But I'm afraid that there are two, I sort of fall off the back in your bicycle which is rare because the difficulty is that it may be in my possession because of by reason of a gift, by reason of purchase, by some lawful reason and I'm totally ignorant as to whether it has or has not been registered. That may not be an uncommon occurrence. And certainly, I think you also have to look not only at what may possibly be the circumstances, and affected by the statute but the statutory scheme and intent, the -- in fact dramatic effect of the proposal.
Charles Alan Wright: Oh, I'm glad if I could pull you back on my bicycle by endeavoring to analyze the statutory scheme as I have said. It seems to me, Mr. Justice Fortas, that if you acquire this firearm that we are talking about by gift. You are then required to register under 5841 unless the transfer provisions were complied with. If they were complied with, you don't have to register. If --
Byron R. White: Why, why not? Because that (Inaudible) -- suppose the provision is that you'd have to go through the making or the (Inaudible).
Charles Alan Wright: And to collect the tax that's involved.
William J. Brennan, Jr.: Yes, but at least the Secretary knows then where the gun is and who has it.
Charles Alan Wright: Right. But if these provisions have not been complied with, when the gun was given to Justice Fortas, then he is guilty of two crimes: First, if he doesn't register it, he has failed to register under 5841 and possesses an unregistered firearm contoured to the ban of 5851; and second, he is also the possessor of a firearm that has been transferred without the transfer provisions being complied with so that he could be prosecuted quite apart from the registration provision. This, it seems to me, is the fundamental vice of the portion of the Firearms Act that we are attacking and our attack here is a very limited one. It goes only to the registration provision. The vice of it is that it is so unnecessary. Indeed, it's only purpose seems to be to provide a means for a multiple sentences for a single transaction because in any instance in which a person may be prosecuted for possession of unregistered firearm, he may also be prosecuted for possession of a firearm which has been made or transferred without complying with the making or transfer provisions so that here, we are asking people to come forward and accuse themselves of crime to no good purpose. Now, as I said earlier that there is a minor --
Abe Fortas: Let's see, what's the crime? Let's suppose again that I'm in possession of a firearm that is required to be registered and I have no knowledge of whether it has or has not been transferred. Can I be prosecuted under this statute and for what?
Charles Alan Wright: How did you acquire the firearms sir?
Abe Fortas: Let's suppose that I have registered it myself to see or I have filed registration. I file a registration, can I be prosecuted? But supposed I acquired it by gift and let's suppose that I went into a store and bought it for anyway you like, what crime have I committed if I go and then -- and if I register it?
Charles Alan Wright: It seems to me that if you register it, perhaps you have not committed the crime of -- in possession --
Abe Fortas: Well, isn't that what we're talking -- and isn't that what we're talking about here. The question is whether the act of registration is -- violates the Fifth Amendment, whether the act of registration would -- has an unnecessary incriminating tendency or effect. Is that what we're - isn't that the issue before us?
Charles Alan Wright: I think that's the issue, surely, sir.
Abe Fortas: And what I want to know is, if I acquire either by gift or by purchase a firearm that ought to be registered and I register it, and I have no knowledge or let's assume that I have no knowledge whether it has been transferred or purchased by a prior owner in violation of the Act. What's -- what crime have I committed?
Charles Alan Wright: I think you've committed a crime of possession of a firearm that is at anytime been transferred in violation of a long line of the sections or which has at anytime been made in violation of Section 5821.
Abe Fortas: And your point is that by registering I incriminate myself in that respect?
Charles Alan Wright: Yes sir.
Abe Fortas: Because of possession of this which is not (Voice Overlap) --
Charles Alan Wright: Because you don't have to register if these other provisions were complied with.
Abe Fortas: Even though I have registered immediately, it comes into my possession. You said that I'm guilty of it -- of a -- in violation of the law. I have -- and I have personally in guilt of violation of the law even though immediately I got my hands on it, I rushed down and register it without unwrapping the package.
Charles Alan Wright: But even without unwrapping the package, if you got it lawfully, you don't have to register; if you got it unlawfully, when you register, you were admitting that you got it unlawfully.
Abe Fortas: I'm asking you, what if -- what do those words mean in the context of the statute, lawfully and unlawfully.
Charles Alan Wright: They mean whether or not you complied with all the detailed provisions as to transfer or making. Now, the Government does put quite properly some situations in which the duty to register may apply although the acquisition was not unlawful. These, as the Government's brief concedes are not the very common situations. And I'm not sure that we would agree with all of the situations the Government puts so illustrating us but they do put the case of the transfer between a maker and a license dealer that registration would be required here even though the transfer provisions need not be complied with. But the same argument that the Government now puts forward that -- perhaps you find a lost gun and this is not a transfer and therefore you don't have them lawfully. This was put to the Ninth Circuit in the Russell case, a leading case in which the registration provision was held unconstitutional and the Ninth Circuit gave what -- in our submission is the correct answer. But even if these situations can occur that in most cases, the duty to register applies only to the unlawful acquisition of a weapon. Therefore, the registration will be enough to be a link in the chain in any instance. It has an incriminatory effect even if the particular acquisition may have been a lawful one in these very rare circumstances.
Byron R. White: Mr. Wright, I think you said at the outset that we're dealing here preliminarily perhaps with a question of statutory construction?
Charles Alan Wright: Yes, sir.
Byron R. White: And If I understood you correctly, you said that the -- you understand the Government to concede that if you are correct in your interpretation of the meaning of the statute that you are also right in your Fifth Amendment claim that you are --?
Charles Alan Wright: Except the use restriction --
Byron R. White: Putting aside the use restriction?
Charles Alan Wright: No.
Byron R. White: But this is also -- major correct in your major correct in your Fifth Amendment claim. Now do you in the other hand concede that if the Government's correct in it statutory construction, that you're claim under the constitution is without merit?
Charles Alan Wright: No, sir. Plainly, I have a tougher constitutional case but I still think I have case. We concede, in fact, this much of the Government's statutory construction as I've just said that there are some rare cases in which the duty to register may apply to a lawful act possession. We take sharp issue with the Government on it construction of 5841. But even if I were wrong there, even if registration by a prior owner is all that is required, then we submit that it is up to the Government to prove that there was some prior owner who might have registered without himself of being incriminated. We think this is similar to the decision twice now in the District of Columbia Circuit involving the Communist Party that it is before the prosecution can convict this person can convict this person. It has to show that there was somebody else who could have registered. Else, we're back to the Lovelace case where the Government inadvertently in its indictment alleged that he had -- had he, the defendant had failed to register and the Fifth Circuit ruled that out. He said, Here, you're attacking the defendant for his personal failure and that you can't do because he can't be required to register.
Abe Fortas: Can I ask you another hypothetical question? Let's take a case of a pawnshop, which is required to report all articles purchased to the police or are all articles taken in pledge, I suppose and is it a -- would it be a defense to a prosecution for failure to comply with that registration requirement that may tend to incriminate the pawnshop owner because sometimes he buys stolen goods and that that may be a violation of the law?
Charles Alan Wright: I'm hesitant about answering that question without knowing more than I do, Mr. Justice Fortas about what the substantive law is with regard to receive stolen goods by an innocent person whether he unknowingly receives stolen goods but definitely not (Voice Overlap) --
Abe Fortas: Why would that makes any difference on the -- as an analogy of your argument? I thought you're going to answer and make that answer and I wonder if it makes any -- if it makes any different at all when if you don't have to take the position that it doesn't matter. In other words, are you suggesting that petitioner here, Mr. Haynes, can successfully defend here only if he isn't -- is innocent in mind but he can't defend that he took this knowing that it was a hot weapon?
Charles Alan Wright: No, I'm certainly not suggesting that. My attack of the statute here is that it imposes an absolute criminal liability. My difficulty with your pawnshop proprietor is that if the substantive law is that when he comes into possession of stolen goods and reports them to the police, there is no criminal responsibility for receipt of stolen goods. Then I would see no self-incrimination problem. If the law is on the other hand that a pawnshop proprietor may be convicted for stealing or stolen goods even though (a) he did not know about them; and (b) he reported them and -- well, I think I'd leave out in the (b). If he can be convicted of innocent receipt of stolen goods, then I would think to be a serious self-incrimination problem.
Abe Fortas: What you're saying is that a person in possession of a firearms covered by the Act can be convicted as you read the statute even though it's an innocent receipt?
Charles Alan Wright: Yes.
Abe Fortas: And is that the basic point on which our construction as to which you say that Government has made this concession? You said that the Government agrees with your statutory construction as correct then you must prevail, is that your point?
Charles Alan Wright: I don't know if the Government conceded the -- this particular question. I do not think in fact that they've discussed it.
Abe Fortas: I don't think they did.
Charles Alan Wright: What they have conceded is that, if I'm right, that registration under 5841 isn't applicably incriminating. And if I'm right that the duty under -- to register applies to every possessor and cannot be satisfied by registration once that then the effect of registration is incriminatory. Now, Mr. Weinstein I'm sure would develop the Government's position more adequately than I can. But that is one of their concession as I've understood it.
Earl Warren: Professor, may I ask you if in the anti-smuggling under the anti-smuggling laws that the man is arrested, prosecuted for having goods in his possession that were not declared when he brought them into this country, when he's prosecuted for having them under those conditions, is it open to him to say, Well, I didn't declare those things because I was a smuggler. And if I had declared those things when I brought the man, I would be admitting my guilt? and therefore, the Fifth Amendment would be violated.
Charles Alan Wright: I do not think it would be open to the person to say that.
Earl Warren: I beg your pardon?
Charles Alan Wright: I do not think it would be open to him to say that because --
Earl Warren: And in what --
Charles Alan Wright: -- of the law offers him --
Earl Warren: -- what constitutional respect is that different from yours?
Charles Alan Wright: Because the law offers him a perfectly easy alternative and that is not to be a smuggler and I'm not here making the voluntary argument that we heard yesterday but it says to him when you come in, declare your goods. And if you do that, then you are not smuggling and there is nothing incriminating in the act of declaring goods when you bring them in.
Byron R. White: Similarly on the transfer of a gun, doesn't the law require in this case that if you want to transfer a gun that you're suppose to do it on an order?
Charles Alan Wright: Yes, sir.
Byron R. White: Made out by the transferee?
Charles Alan Wright: Yes, sir.
Byron R. White: Well, isn't this the perfectly good alternative that the fellow has when he receives the gun. That he is the one who is supposed to make sure that the chain entitled on the gun is protected. It's sort of a filing requirement. Now, what's wrong with that?
Charles Alan Wright: Nothing, not a thing, Mr. Justice White.
Byron R. White: But why didn't -- why doesn't the fellow then -- when he gets the gun, make out his order and make sure that the transfer requirements to complied with?
Charles Alan Wright: Oh, I think your question points up the very narrow issue that is involved here. We do not challenge at all the transfer requirements.
Byron R. White: Well, I understand that.
Charles Alan Wright: And by the transfer requirements --
Byron R. White: But you did say on the fact that if he doesn't go through that procedure, the transferee doesn't go through that procedure, that is incriminating him to require him to register the gun.
Charles Alan Wright: Yes.
Byron R. White: But you asked the Chief Justice that the fellow could be prosecuted for failure to declare.
Charles Alan Wright: The analogy would be if you had a statute that any person who has already smuggled goods into the country must report the fact and the prosecution were not for smuggling but for not reporting. They are, I would see, of course, the Fifth Amendment problem. I think that by the making and transfer provisions, the Government effectively regulates firearms. It is able to keep a detailed record of them that the registration provisions serves no additional purpose except to say, Well, now if you violated these things, please come forward and tell us. And this is what the Fifth Amendment is all about but we don't ask the citizen to do that. By all sayings he could have been convicted for having made a firearm. And in fact the information against them had three counts and the Government for reasons of its own chose to proceed on the registration count rather than on other counts. Counts that I think could not be challenged on constitutional grounds. There are several cases cited on our brief from which the Government has been scared of 5851 so it's dismissed the 5851 indictment for non-registration and got a new indictment for possession of a weapon that's been transferred in violation of law. The Government can do that but the Government can't constitutionally do, we submit as send you to jail for non-registration.
Potter Stewart: Do I understand, as you read these statutes that the upshot of it is that you have to confess to the violation of one criminal offense in order to have a defense to the violation of another. In other words, that your only defense against possession of a firearm within the definition is that if you have registered it but if you register it, you're guilty of another criminal offense.
Charles Alan Wright: Yes.
Potter Stewart: Is that? If I got it right?
Charles Alan Wright: That's my position. That's why --
Earl Warren: Mr. Weinstien.
Harris Weinstein: Mr. Chief Justice, may it please the Court. I think the last formulation that Professor Wright used perhaps best summarizes his claim of what the statute means and did in this case. He said, I think, that we were sending Mr. Haynes to jail for non-registration. I assume he means by that for Mr. Haynes non-registration. And I think Professor Wright agrees that to reach that conclusion, both statutory sections, 5841 and 5851 have to be construed his way. Now, I first like to turn if I may to 5851, which is the provision under which Mr. Haynes was prosecuted. That's a statute that defines as a crime, possessing a firearm under certain situations. One of those situations, and I'd like to read the exact language, "Is to possess any firearm which has not been registered as required by Section 5841." Now, our position is that that in no way deals with the defendant's failure to register. It is in the past tense. It said -- says, Has not been registered?. It's quite in contrast to another section, Section 5855. It does deal with the possessor's failure to register. In Section 5855, it makes a prohibition on shipping firearms and interstate commerce in certain situations and the first clause of that says, "It shall be unlawful for any person who is required to register as provided in Section 5841 and who shall not have so registered to ship in interstate commerce". Now, we believe that the language, a quite different language of Section 5855, help show that Congress had a rather different idea in mind in the past tense that it used in Section 5851. I'd also like to point out, if I may that if Professor Wright's reading of Section 5851 were correct, then this language, which Congress put into the statute in 1958 would simply duplicate the requirements of Section 5841 which require possessors to register and the failure to make that registration is punished under the penalty section of the statute, Section 5861 by the same penalty as it would apply to a violation of the possession placed in past tense in Section 5851. And the last point I'd like to make on the meaning of this part of Section 5851 is that as I understand Professor Wright's argument, he refers to -- he relies on two words, Such person. Now those words don't appear in 5851 as near as I can tell in any context. My understanding is that they are taken out of 5841 and what the meaning of those words in 5841 as I see the statute has -- provides no help in interpreting the possession provisions in the past tense in Section 5851. Now, I think it's fair that there are two points to Professor Wright's argument. One that I just dealt with is that the charge against the defendant is that he himself failed to register. Now, as I've indicated, we think that's wrong as a matter of statutory construction and for that reason alone, the conviction ought to be affirmed. But there's a second essential element to the petitioner's argument and that is that under Section 5841, the registration requirement, the only people who have to register are those who already violated the law. As cast in the District Court and through the briefing in this case, the attack on the statute was a simple attack on its face of the statute. As we understand that to mean, it is that in the petitioner's view, there is no situation to which the statute can apply without resulting in the incrimination of the register. Now, in the argument, I think Professor Wright has said, he agrees there are some rare, I think rare was his word, cases in which registration would be required without incrimination. I would think to start with that alone is enough to defeat his argument that the statute is unconstitutional on its face but more importantly, in terms of what the statute means, in our view, it is those rare cases that he describes that the statute was particularly intended to apply them. As I think Mr. Justice White's suggested earlier, the scheme of this statute is to require advance registrations or at least notifications to the Treasury of changes in possession of the firearms, these machine guns and sawed-off shotguns that are subject to the tax. There are two situations generally in which the provisions of the statute will result in this type of advance notification. One is when there is a taxable transfer and in these situations, the transferor has an obligation to obtain information about the transferee, to fill on a form, to send it to the Treasury to put the tax stamp on it. In a taxable making, now that is a taxable making is when it is made by somebody who was not a manufacturer, who was not paying the manufacturers occupational tax. The person who is making it is required to file in advance a declaration of his intent to make; that is in Section 5821 (e).
Potter Stewart: What would that kind of a maker be who is not a manufacturer?
Harris Weinstein: It would --
Potter Stewart: If that -- if I bought an ordinary shotgun, a bird-shooting shotgun and -- or a larger gauge, 12 gauge and then decided a sawed-off but I have to -- would I be a maker?
Harris Weinstein: Mr. Justice Stewart, you would be if the end result was a gun that was under 26 inches in overall length whether you took off part of the stock or part of the barrel.
Potter Stewart: But if it were 26 and 1/8 inches, I wouldn't be (Voice Overlap) --
Harris Weinstein: That's right. I think -- I'm not sure whether it's exactly 26 would be legal or illegal but that's the dividing line. The same way --
Potter Stewart: But I would be a maker then?
Harris Weinstein: You would be a maker and since you wouldn't be a manufacturer --
Potter Stewart: I have to register it then?
Harris Weinstein: That's right. The only -- there are other exceptions to this if for example you were a state police officer or sheriff and making it --
Potter Stewart: Oh, I'm not --
Harris Weinstein: -- for official use. But in that situation too, the Treasury would have advanced notice of the location of the gun.What there are though are number of the exceptions such as the sheriff, such a transaction between two people who are paying the occupational taxes which could be on a manufacturer or a dealer or importer where the requirements of Section 5814 on transfers or 5821 on making just don't apply. There's also other exceptions such as transfer to the government in which the Government -- in which the Treasury would receive no notice or advance notice at least to the location of the gun.
Abe Fortas: Suppose I ?
Harris Weinstein: Yes, sir.
Abe Fortas: Excuse me. But suppose I am in possession of a gun and I -- which I acquired by a purchase or by gift, I made no inquiries as to whether that it's previously been registered. This is a gun that falls within the scope of the Firearms Act and I'm on possession of it. I register it. Can I thereafter be prosecuted for the failure to have that -- from circumstance of my acquisition of the gun or for the failure of the maker or previous owners perhaps to have registered it? Now in the present case as I understand it, the charge is that Haynes was the maker of the gun, he took the shotgun and sawed it off, isn't that right?
Harris Weinstein: This is one of the charges that was brought?
Abe Fortas: Yes, it was brought but --
Harris Weinstein: Yes.
Abe Fortas: -- those in the circumstance of the case, I understand it and alleged them, right? Now, what's the answer to my question? I buy a gun or somebody gives me a gun and I make no inquiry and I have no knowledge as to whether it has previously been registered, can I be prosecuted under the Act --
Harris Weinstein: I would think in the --
Abe Fortas: -- for violation of law?
Harris Weinstein: I would think in the circumstances of a gift, no.
Abe Fortas: What did you say?
Harris Weinstein: In the circumstances of a gift, you would not.
Abe Fortas: Well, that's --
Harris Weinstein: In the --
Abe Fortas: -- a transfer.
Harris Weinstein: It's a transfer but I don't think that you at that point at the moment of receiving it. You had no control over the transfer. I don't think that you could have any element of knowledge of the history of the gun or even that it were coming to you and I think that this is the distinction with the transfer. If you had knew that you were receiving the gun in advance of its transfer to you, I think you would be charged with an obligation of determining whether the gun, the firearm was lawful for you to receive.
Abe Fortas: Well, I think that's Professor Wright's point. Then, suppose I go to a store and I buy a gun that's subject to the Firearms Act and the clerk wraps it up and gives it to me. And I get home and I take it down the Internal Revenue or (Inaudible) wherever I'm supposed to go and I register it right away. And I made no inquiry and know nothing about it. You say that I can be prosecuted?
Harris Weinstein: Where you received the gun and transfer that you participated in --
Abe Fortas: Now, but that's --
Harris Weinstein: I would --
Abe Fortas: -- Professor Wright's point.
Harris Weinstein: Yes.
Abe Fortas: Professor Wright says that therefore this is an incriminating act on the count of what I do, the mere -- by the mere fact of possession of the gun, if I register it then I am incriminating myself? And the question is, whether that argument is valid because I suppose some people acquire -- I mean the possession of guns that have been properly registered by prior owners and the maker.
Harris Weinstein: Oh, while we recognize that statute applies to that, we -- I think there are two crimes in question here and I think we've got to distinguish which we're talking about. If you were charged with receiving a gun that has been transferred unlawfully or that has not previously been registered, I don't see that that is distinquishable from a charge of receiving stolen goods. If you're being charged with your own failure to register under Section 5841, then I think we would say that that's not compelling incrimination because you knew the gun was coming to you and you had the opportunity before you received it to determine whether your possession would be lawful and I --
Potter Stewart: But isn't that smack of the old Kahriger and Lewis arguments that you don't have to commit a crime. So voluntary, you don't have to commit murder and rape --
Harris Weinstein: I think it's --
Potter Stewart: -- and therefore, that takes any force at all out of Fifth Amendment, that argument. So --
Harris Weinstein: I don't --
Potter Stewart: -- if you do, then you waive the Fifth Amendment. That's the conclusion of the argument.
Harris Weinstein: Mr. Justice Stewart, I don't think it's a waiver argument because if you make the inquiry in advance, there should be lawful means of acquiring a gun. And if you can make certain that the statute is complied with either by the transferor getting the information and paying the tax under 5814 or your registering it to yourself then I would believe that your possession would be lawful.
Potter Stewart: Well, as I understand the argument that Mr. Wright at least to give this that the statute makes it as Justice Fortas' question illustrate it, makes it an offense to possess a firearm as defined if anywhere back in the manufacturer or the chain of title there has not been a registration. And therefore, if you require one in the way that Justice Fortas described, it's your -- and you register it. You are then right then and there giving evidence that you are in possession of a firearm that somewhere back in the chain of title was not registered and you are therefore guilty of an offense.And on the other hand, if you don't register it, you are guilty of an offense. Now, isn't that the argument?
Harris Weinstein: Well, if we're talking about --
Potter Stewart: You're guilty of a different offense.
Harris Weinstein: If we're talking about the non-registration by some prior possessor, again, I would analogize that to the receipt of goods where that person receiving it has some reason to believe that it had been stolen, I think this statute puts on the person who's going to get the gun the obligation of inquiry when he knows he's going to get it. And if that inquiry discloses that the gun can't be possessed lawfully because of something somebody else did that can't be cured.
Potter Stewart: And he has the option of not buying it.
Harris Weinstein: He has an option --
Potter Stewart: That the man has an option of not committing a rape, I suppose assuming he's a (Inaudible) man.
Harris Weinstein: Well, I prefer to say this man has the option not taking goods that he knows has been stolen.
Potter Stewart: The other crime, burglary, receiving stolen good, assault and battery, any of these things, and the argument leads to the fact that he -- since you have an option to do or not to do this criminal conduct, if you do it, you waive the Fifth Amendment. And that's an argument that I have a great deal of difficulty in accepting.
Harris Weinstein: As I understand it, this crime is different from the others that you listed because it goes to possession. And, if we're talking about 5851, which is this crime, the statute that makes certain types of possession a crime. It's the moment of possession that creates the criminal liability and it's a possession that's made criminal because of the past history of a gun. Now, the fact that you could determine the past history and avoid taking it is not what we would consider a waiver. It's an option. You make a free choice to commit this crime as you would any other crime.
Abe Fortas: But I wonder if that really is the only argument that you've got to support this and I suppose that people have gone to the store and let's assume that these weapons can be purchased via mail or at the grocery store or something like that and I assume that a person who purchases one of these or takes a gift, it could be said and what could be argued that a person who puts his wallet, takes a gift doesn't have the same reason to know that it's taking some hot merchandise, doesn't have the same basic -- the knowing that he is taking a hot merchandise. That it make the case comparable to a gambling situation because everybody knows that gambling is unlawful in most states. Now, would that make a difference in the approach to this question? Do you understand my point?
Harris Weinstein: I think I do, and I think I (Voice Overlap) --
Abe Fortas: Oh, does that make a difference here or to put it in the more erudite language, perhaps this -- it's arguable in a way that this is not a situation permeated with illegality.
Harris Weinstein: That is exactly our position that it is permeated with the illegality and I think (Voice Overlap) --
Abe Fortas: Unless if separate and apart from this business that you are discussing with my Brother Stewart about the option and choice and all that stuff, is that right?
Earl Warren: Mr. Weinstein, may I ask you --
Harris Weinstein: Yes Your Honor.
Earl Warren: -- if there is in your any constitutional difference between the prosecution under 5851 as we have in this case and the prosecution of a defendant for having in his possession a gun that was imported into this country without having and declared it and paid the taxes under the custom laws.
Harris Weinstein: I'll have to confess I'm not sufficiently familiar to know what the elements of crime would be in that case but it -- I would say that that's in indistinguishable where it would be --
Earl Warren: It's indistinguishable?
Harris Weinstein: Indistinguishable where the element of the -- where the claim of Fifth Amendment right is a -- that to declare the item coming through customs -- whether to confess the crime --
Earl Warren: Well, is he -- as a gambler, it says here, you make me register as a gambler and therefore, you violate my Fifth Amendment rights. Would the smuggler would be able to say, "Well, I wasn't an honest citizen bringing this in.I was a smuggler and if you made me declare it when I brought it in and pay a tax and admit that I did, well, you're violating my Fifth Amendment's rights too". That's all. That's -- I just wanted to --
Harris Weinstein: I'm afraid that I would be (Inaudible) as if I try to compare a gamblers and smugglers when I'm not as familiar as I perhaps ought to be with --
Earl Warren: Yes.
Harris Weinstein: -- both courts of the statute.
Earl Warren: Well in -- as then Mr. Justice Fortas would ask you about the pawnshops and that there've been other questions asked along the line, I just want to know what the implications of deciding this would be. I'm not questioning your argument in the slightest but I want to know, I like to know before we decide this case if we are going to in the -- in deciding for the petitioner here if we are going to nullify the smuggling laws and maybe the Pawnbrokers Laws and the Firearms Law and all other laws which require registration and the theory that if a man is dishonest and is violating the law, you can't compel him to register because it might admit his guilt.
Harris Weinstein: I think, Mr. Chief Justice, that I would start by saying that each statute of course has differences in drafting and I would hesitate to be too sweeping.
Earl Warren: That's right.
Harris Weinstein: But I do think that if this kind of registration is nullified, the pawnbroker requirement, the automobile registration requirement would have serious questions. I think you would have serious question, say in a case where a man who didn't file an income tax in one year claimed that he never had to file again because that would suggest to the Government that he had committed a crime earlier, you have -- not filing. I think that this do all potentially come together.
Potter Stewart: Wouldn't there be an extra-ordinary potential impact upon a -- what seems to be in the area of federal criminal law and much larger, a quantitative problem that is the narcotics laws.
Harris Weinstein: Yes sir.
Potter Stewart: Those are all drafted in terms of many, many of that -- much of that legislation and the only original legislation was drafted in terms of paying a tax, paying a duty, a possession of something on which the duty hadn't been paid.
Harris Weinstein: I think you'd say in --
Potter Stewart: You didn't have it -- this on, isn't that correct?
Harris Weinstein: Yes, (Voice Overlap) --
Potter Stewart: I mean, without again getting into the specific wording of the statute, certainly this would have quite an impact on that issue (Voice Overlap)
Harris Weinstein: I think in -- say in the narcotics area for example, a person who is supposed to register and had made an illegal transaction beforehand would be able to claim that by registering it, he would be incriminating himself of the prior transaction. If I may briefly, there are two other points that I would like to turn to. First, Professor Wright has said that we have an obligation of showing that some prior possessor would have to have been able to register this gun without suggesting that he is guilty of some crime. Well, we first disagree with that legal proposition as we suggest in --
Earl Warren: Would you speak a little louder please?
Harris Weinstein: We would first disagree with that legal proposition because it would be putting Mr. Haynes in the position of resting on the supposed rights of some people whom we don't know and in situations we know nothing about. To transport Justice Holmes words in Sullivan, we would be letting Mr. Haynes go inside a conjurers circle that somebody else drew and the timings that we weren't aware of and for reasons that we're not aware.
Potter Stewart: I'm not -- I didn't quite (Voice Overlap) --
Harris Weinstein: Well, we would be letting him take advantage of somebody else's failure to comply with the Act for re -- for an --
Potter Stewart: This -- is this a matter of standing or what is this, some --
Harris Weinstein: I think --
Potter Stewart: Is this a matter of standing or is it -- or is your point that the Fifth Amendment prohibits compulsory self-incrimination not compulsory incrimination of somebody else. Which is it or neither?
Harris Weinstein: I think it is essentially that it prohibits self-compulsory -- self-incrimination. Now, I wouldn't argue here that there is no situation where one person's protections require that somebody else be able to invoke the other person's right. I just don't -- wouldn't want to try to envision every possible circumstance. But we certainly think that here, where you don't know whose rights that they are or in what situation they might have been claimed and when they never were claimed before any tribunal that there -- we don't have this obligation. But going beyond that, we think we can fulfill the obligation even if we had it because it's quite clear that someone at some point had the opportunity to bring this gun to the Government's attention lawfully. If he made it and was subject to the making tax, he could've done it then. The maker could've done it. Otherwise, the first transferee, as if the maker was not subject to the tax, the first transferee who was subject to the tax, either his transferor could've complied with 5814 or the transferee could've complied with 5841. So we think that with each firearm that is inevitable that there would be someone who is in a position to comply.
Speaker: Well, what do you do with the regulations (Inaudible)?
Harris Weinstein: We would -- the thrust of that regulation I think, is that you have to register in one of two situations. One is where there -- no one has committed any sort of a crime of the transfer and that the other situation is that the person must register who has gotten the gun in a way that the Government should have gotten notice but didn't. Now, these two, I would suggest is somewhat similar to the pawnbroker statute. The registration doesn't show incrimination that registration doesn't -- has nothing in it to suggest why it's come in and we recognize that the statute applies to a whole host of people. We don't know who they are.It's intended principally to bear on people who run no risk of incrimination. Now, we think that every tax statute that relies on a system of confession certainly closes some threat of incrimination such as the person in Sullivan who files a tax return and shows no source for his income, I think runs the risk of the Government investigating the sources of his income. We don't think that this regulation poses any more serious risk of information on -- that sort of person runs in complying with the Income Tax Laws.
William J. Brennan, Jr.: Are you saying the registration may or may not be incriminatory?
Harris Weinstein: That's right. Just as the person who registers a car may have bought it or may have stolen it, I assume that if he is claiming possession to it, he's got to register.
William J. Brennan, Jr.: Because there are some situations that you have to register where there has been no failure to comply with provisions applicable to transferring.
Harris Weinstein: Yes and -- no, I would go further than saying so on and saying in this instance that's the essential impact of the registration requirement.
William J. Brennan, Jr.: And yet, if the -- the claim here is that the suit could be dismissed because the statute is unconstitutional without any showing that this particular registration would be incriminatory?
Harris Weinstein: I think that was a suggestion below and in the brief. I think that here it's been suggested that because the man who was charged with being a maker, some different -- there should be a different result. But we think that whether he is charged with being a maker or not, the risks -- well first, he is --
William J. Brennan, Jr.: Well, that -- but that claim is still is in the case, is it?
Harris Weinstein: But we don't think it is. Its been -- it has been advanced, I think it's in the --
William J. Brennan, Jr.: Was the count -- what -- was that count dismissed?
Harris Weinstein: Yes, yes the -- there were three counts in the indictment. One was based on making on -- in the information. And the possession -- there was a guilty plea to the possession count and the other two were dismissed.
William J. Brennan, Jr.: The possession of what?
Harris Weinstein: Of a firearm that had not been registered.
William J. Brennan, Jr.: Has not been registered?
Harris Weinstein: That's right before --
William J. Brennan, Jr.: And then the third count was because ha had registered it.
Harris Weinstein: I -- no, I think one was ?
William J. Brennan, Jr.: Well, what's the third count?
Harris Weinstein: If I may just refresh my recollection on that. One was for making the gun unlawfully without paying the tax --
William J. Brennan, Jr.: And that was this man?
Harris Weinstein: -- issued. Yes. The first count was for possessing a gun that had been made unlawfully and the other -- that was the first count. The third count, which was also dismissed, charged Haynes with himself making a gun and that was also dismissed and argued, was not on the case at this point.
William J. Brennan, Jr.: And the claim is that the motion to dismiss the indictment should be granted on the ground the statute is unconstitutional?
Harris Weinstein: Yes. And that motion was directed only at the second count. That claim was the second count was based on a statute -- two of them 5851 and 5841 before the (Voice Overlap) --
William J. Brennan, Jr.: Although there are some circumstances that with registration could not in any way be incriminatory?
Harris Weinstein: I don't think that was conceded until argument today. The position --
William J. Brennan, Jr.: But there are some. Here, the Government's claim is that there are some circumstances with registration --
Harris Weinstein: That's right.
William J. Brennan, Jr.: -- could not be incriminatory in anyway.
Harris Weinstein: Yes, and we think, for example the reported case of United States against Forgett in the Sixth Circuit, which we discussed in our brief is a typical example of that sort where there was a transaction between dealers and the dealer acquiring the weapon failed to register and then took it in -- weapons in interstate commerce. And if he had registered, he would've committed no crime at all.
Hugo L. Black: May I ask you what would be the effect on that situation as argued as today that the Government did not make possession without being registered a crime, if that statute, that particular one were not in existence?
Harris Weinstein: The -- I think that was a situation when the Ninth Circuit decided the Russell case. And the question would then be whether 5841 which report -- itself requires registration affirmatively, is unconstitutional on its face. And our position would be that the answer to that, the argument based that the Ninth Circuit accepted in Russell is that there are these situations that the statute is intended to apply to where no one can contend that there is incrimination from registration. And we would disagree with the result in Russell. Now -- I'm sorry I've seen my time is out but --
Earl Warren: Finish your answer to that.
Harris Weinstein: If -- we think that Russell is based on an erroneous reading of a presumption contained in the possession statute that was there at the time Russell was decided. And the presump -- Russell read that presumption as indicating that possession alone created an evidentiary presumption that the statute had such, at some time, been made or transferred in violation of the Act.
Hugo L. Black: Would you defend that?
Harris Weinstein: I beg your pardon?
Hugo L. Black: Would you defend that?
Harris Weinstein: We think that's an erroneous reading because we think that there's a placement of the word ?such? in the presumption that describes such firearm. And we think that refers back to the first sentence of the -- of 5851 as it read it that time and still does in the beginning -- which talks about a firearm that has at anytime been transferred or made unlawfully. So as we read the presumption, the Government has got to prove possession and some prior unlawful making or transfer. This is the view that the Sixth Circuit took in for Forgett and that we think is correct in the answer to the underlying analysis in Russell.
Hugo L. Black: Would you defend that presumption, that presumption?
Harris Weinstein: I think we would say that that pres -- if that presumption were at issue, I think we would say that the presumption is like the one in the -- I believe the Annie (ph) case and should be upheld because that --
Hugo L. Black: What about (Inaudible)?
Harris Weinstein: I think we -- if perhaps, if I could place it in terms of this statute, we would argue that there's a rational, that once you have shown that a man has a weapon and you show that it has been previously made or transferred unlawfully, that its rational to conclude that he had the necessary element of knowledge that -- to charge him with a crime of possessing it of going with these attributes. But I think the -- I don't think that that question is presented here, Mr. Justice Black. I don't think it can be under the -- this statute as drafted and under which the petitioner Mr. Haynes was charged. On the -- or use restriction contention I will rest on our brief.
Earl Warren: Very well.
Harris Weinstein: Thank you.
Earl Warren: Mr. Wright.
Charles Alan Wright: Mr. Chief Justice, may it please the Court. The argument for the United States with regard to the National Firearm Act, things to my mind Learned Hand's admonition not to make a fortress out of the dictionary, I think that admonition is specially apt in a statute as poorly drafted as this one is. It is a hodgepodge of different provisions adopted by Congress at different times. And I do not think it would stand dramatical analysis. The fact that the past tense as used in a particular provision of Section 5851 seems to me less revealing than the existing of -- that the existence of the treasury regulation, saying in fact that every person of the United States possessing a firearm not registered to him shall register the firearm. I would like to put a concrete example, if I may to indicate how we think the statute has to be construed. Suppose, Mr. Weinstein has a firearm that he has acquired lawfully, transfer provisions had been followed when he acquired it. Mr. Weinstein then gives, sells, loans, or otherwise transfers the need of firearm. Under what duties do I stand? I suggest that first, under the first sentence of Section 5841, I am a person possessing a firearm. Therefore, that person imposes a duty to register. Under the second sentence of 5841, no person shall be required to register with respect to the firearm when such a person acquired it by transfer if the provisions of this chapter were complied with. But that doesn't help me out because when I acquired it by transfer, the provisions of this chapter were not complied with. Therefore, I am still a person under a duty to register and when I register, as I now must under 5841, I say, I acquired a firearm unlawfully from Mr. Weinstein and I go to jail for it.
Abe Fortas: Now where do you say that? Is this the form that he has to fill out, appendix b in your brief?
Charles Alan Wright: Yes.
Abe Fortas: Now show me where you said that.
Charles Alan Wright: I don't fill out the form, sir, unless I felt to comply with the transfer provisions when -- unless there has been a failure of complying the transfer provisions.
Abe Fortas: I'm taking this intriguing transaction between you and Mr. Weinstein, now, you've got the gun.
Charles Alan Wright: I have the gun.
Abe Fortas: And you go to the -- do you go register it?
Charles Alan Wright: Yes, sir.
Abe Fortas: Is that right? You fill out appendix b. Now, what's your -- what it's incriminating, what is any specific language in here to which you object other than the fact that you must say you're -- you possess the gun the date you acquired. Does it say from whom you acquired it? I don't see that in (Voice Overlap) --
Charles Alan Wright: I don't believe it does.
Abe Fortas: So all you have to do, you don't even have to say you got it from Mr. Weinstein, do you?
Charles Alan Wright: I have to state the name and address of the manufacturer. I do not have to state the name of (Voice overlap) --
Abe Fortas: So that would be shown on -- that would be shown on the gun used.
Charles Alan Wright: No, no because these are all guns --
Abe Fortas: Well, alright.
Charles Alan Wright: -- that somebody's made at home.
Abe Fortas: Well, some of them are and some of them are guns that has been altered at home.
Charles Alan Wright: Yes.
Abe Fortas: But -- and I don't know what these means. But in any event, all you have to do -- this doesn't even say I acquired it from Mr. Weinstein.
Charles Alan Wright: That's right.
Abe Fortas: All you have to do is to fill out this form and say that you own it, and you possess it and you acquired it and tell him where you usually keep it and when you were born and stuff like that.
Charles Alan Wright: And don't you think, Mr. Justice Fortas, that when the United States undertakes to prosecute me for a possession of a gun that has been made or transferred in violation of making a transfer provisions that it is going to be powerful evidence on behalf of the Government. But Mr. Wright came forward to the treasury and filled out this form and only those people would -- with -- except for on what the Government calls ?uncommon? in its brief. Except for those uncommon cases, only those people who have acquired guns unlawfully are required to do this.
Abe Fortas: Well, you mean the fact, the mere -- the fact that you went up there and registered and you say from that and there'll be a permissible inference that you had a guilty conscience.
Charles Alan Wright: There is at minimum a permissible inference and on the reading the Ninth Circuit gives to 5851, the Government has now made a prima facie case.
William J. Brennan, Jr.: Yes, but do you read there, it sound like, (Inaudible)?
Charles Alan Wright: That's right, I can see that.
William J. Brennan, Jr.: And so, you still think the Government though, when it sees a registration to come in, its going to say to itself, "Well, this must has been in an unlawful acquisition rather than a lawful acquisition", although we know there are some lawful acquisition.
Charles Alan Wright: The Government has gone to think that this isn't a transaction that bears very close investigation and even if it happens that minus one of those rare cases in which the acquisition was lawful and I'm there for registering only because I'm a law abiding citizen. That does not mean that I will not be prosecuted for unlawful acquisition and that this may not be used very effectively against me.
William J. Brennan, Jr.: But this is measurably different than refusing, taking a privilege on showing the source of your income on income tax returns, doesn't it?
Charles Alan Wright: I do not understand how that can be used an evidence against me.
William J. Brennan, Jr.: It's a quite the -- but if this is quite a tipoff to the Government, the Government might say this is very, very -- that this bears very close to scrutiny --
Charles Alan Wright: Yes it might.
William J. Brennan, Jr.: -- just like your -- just like the registration of a gun, where some of what -- even though the acquisition might be legal.
Charles Alan Wright: I grant that it would. But in the great bulk of instances, the filing of the return is in itself incriminating and in those other few instances, it has a devastating potential as against even in the instance of a defendant.
William J. Brennan, Jr.: Well, he has prepared -- you see we are at a stage of the case where you object to the introduction of the registration point. And your argument would be very good if -- I suppose if the Government actually prosecuted you for possessing an unregistered gun or for acquiring a gun that had been transferred illegally and altered the registration statement. But you're saying here that the statute is unconstitutional and that nobody should be required to register any gun even if he acquired it lawfully.
Charles Alan Wright: That is just what I'm saying.
William J. Brennan, Jr.: Yes, you're saying the statute is unconstitutional on its face.
Charles Alan Wright: I'm saying the statute is unconstitutional on its face that a constitutional statute could be drafted to require a registration of lawfully acquired guns and that there are already enough statutes on the books that penalize the unlawful acquisition of guns. Thank you.
Potter Stewart: Mr. Wright, just to -- (Inaudible) as required to the applicant permitted to (Inaudible) -- is that the only application forms, do you know --
Charles Alan Wright: So far as I know --
Potter Stewart: Of course they're 5841 or 5851?
Charles Alan Wright: If it's not on the registration form, I don't believe --
Potter Stewart: It's not. This one is an application, an order for transfer of a firearm --
Charles Alan Wright: When you're making a transfer.
Potter Stewart: That's form for firearms and then there's a declaration of intent to make a firearm, form 1A firearm, requires fingerprint from the applicant.
Charles Alan Wright: Fingerprints and photograph too.
Potter Stewart: But the registration form does not, you're telling me?
Charles Alan Wright: Yes, that's correct.
Potter Stewart: Have you thought of the -- or looked into at all the impact of the argument you are making to us today in the Federal Narcotic Laws?
Charles Alan Wright: I have thought about it of course and then anticipated that the -- that would be a matter of concern to the Court and I finally concluded that Justice, I see a significant differences between the wagering scheme and the Firearms Act so the Narcotic Statutes are such a different statutory scheme and I think they would have to stand on our own bottom. I do point out that the Narcotic Statutes supplied to a business that is in many respects entirely legal. The statutes do not endeavor to reach only the illegal transactions. They would -- they require people to register and keep records when doctors lawfully possessing narcotics.In that respect, it is very different from this statute that hardly ever reaches anybody, except the lawbreaker.
Potter Stewart: Well, there is a presumption that a possessor of narcotics is in possession of narcotics upon which the tax had not been paid and it's up to him to rebut that presumption. If he does, he can get the same kind of difficulty that you say this tangled up into the cross, the quick sawing effect of (Inaudible) of different criminal statute. There are those basics somewhere in the statute --
Charles Alan Wright: I think if (Voice Overlap) --
Potter Stewart: -- or not, I don't have the .(Voice Overlap) --
Charles Alan Wright: I've prefer really not to answer that question. I don't feel well enough briefed in that statutory scheme.
Potter Stewart: But there, it's pretty clear that this, at least briefly, would get pretty close to some of those narcotic laws which are on the same general area of the Fifth Amendment concern, is it not?
Charles Alan Wright: Only if the Congress in adopting the Narcotics Laws indulge in this unnecessary -- a form of legislation as I did in my submissions here.
Potter Stewart: But it can be argued as someone know it did.
Charles Alan Wright: Perhaps so and if so then I would not flinch from making of it in the argument against them.
Earl Warren: We recess now.