Petitioner was charged by information with violating 26 U.S.C. §
5851 (part of the National Firearms Act, an interrelated statutory
system for the taxation of certain classes of firearms used
principally by persons engaged in unlawful activities) by knowingly
possessing a defined firearm which had not been registered as
required by 26 U.S.C. § 5841. Section 5841 obligates the possessor
of a defined firearm to register the weapon, unless he made it or
acquired it by transfer or importation, and the Act's requirements
as to transfers, makings and importations "were complied with."
Section 5851 declares unlawful the possession of such firearm which
has "at any time" been transferred or made in violation of the Act,
or which "has not been registered as required by section 5841."
Additionally, § 5851 provides that "possession shall be deemed
sufficient evidence to authorize conviction, unless the defendant
explains such possession to the satisfaction of the jury."
Petitioner moved before trial to dismiss the charge, sufficiently
asserting that § 5851 violated his privilege against
self-incrimination guaranteed by the Fifth Amendment. The motion
was denied, petitioner pleaded guilty, and his conviction was
affirmed by the Court of Appeals.
Held:
1. Congress, subject to constitutional limitations, has
authority to regulate the manufacture, transfer, and possession of
firearms, and may tax unlawful activities. Pp.
390 U. S. 90,
390 U. S.
98.
2. Petitioner's conviction under § 5851 for possession of an
unregistered firearm is not properly distinguishable from a
conviction under § 5841 for failure to register possession of a
firearm, and both offenses must be deemed subject to any
constitutional deficiencies arising under the Fifth Amendment from
the obligation to register. Pp.
390 U. S.
90-95.
3. A proper claim of the privilege against self-incrimination
provides a full defense to prosecutions either for failure to
register under § 5841 or for possession of an unregistered firearm
under § 5851. Pp.
390 U. S.
95-100.
4. Restrictions upon the use by federal and state authorities of
information obtained as a consequence of the registration
requirement,
Page 390 U. S. 86
suggested by the Government, is not appropriate.
Marchetti
v. United States, ante, p.
390 U. S. 39, and
Grosso v. United States, ante, p.
390 U. S. 62. Pp.
390 U. S.
99-100.
5. Since any proceeding in the District Court upon a remand must
inevitably result in the reversal of petitioner's conviction, it
would be neither just nor appropriate to require such needless
action, and accordingly the judgment is reversed. Pp.
390 U. S.
100-101.
372 F.2d 651, reversed.
MR. JUSTICE HARLAN delivered the opinion of the Court.
Petitioner was charged by a three-count information filed in the
United States District Court for the Northern District of Texas
with violations of the National Firearms Act. 48 Stat. 1236. Two of
the counts were subsequently dismissed upon motion of the United
States Attorney. The remaining count averred that petitioner, in
violation of 26 U.S.C. § 5851, knowingly possessed a firearm, as
defined by 26 U.S.C. § 5848(1), which had not been registered with
the Secretary of the Treasury or his delegate, as required by 26
U.S.C. § 5841. Petitioner moved before trial to dismiss this count,
evidently asserting that § 5851 violated his privilege against
self-incrimination, as guaranteed by the Fifth Amendment. [
Footnote 1] The motion was denied, and
petitioner thereupon
Page 390 U. S. 87
entered a plea of guilty. [
Footnote 2] The judgment of conviction was affirmed by the
Court of Appeals for the Fifth Circuit. 372 F.2d 651. We granted
certiorari to examine the constitutionality under the Fifth
Amendment of petitioner's conviction.
388 U.
S. 908. For reasons which follow, we reverse.
I
Section 5851 [
Footnote 3]
forms part of the National Firearms Act, an interrelated statutory
system for the taxation of certain classes of firearms. The Act's
requirements are applicable only to shotguns with barrels less than
18 inches long; rifles with barrels less than 16 inches long; other
weapons, made from a rifle or shotgun, with an overall length of
less than 26 inches; machine guns and other automatic firearms;
mufflers and silencers, and other firearms, except pistols and
revolvers, "if such weapon is capable of being concealed on the
person. . . ." 26 U.S.C. 5848(1); Treas.Reg. § 179.20, 26 CFR §
179.20. These limitations were apparently intended to guarantee
that only weapons used principally by persons engaged in unlawful
activities would be subjected to taxation. [
Footnote 4]
Page 390 U. S. 88
Importers, manufacturers, and dealers in such firearms are
obliged each year to pay special occupational taxes, and to
register with the Secretary of the Treasury or his delegate. 26
U.S.C. §§ 5801, 5802. Separate taxes are imposed on the making and
transfer of such firearms by persons other than those obliged to
pay the occupational taxes. 26 U.S.C. §§ 5811, 5821. For purposes
of these additional taxes, the acts of making and transferring
firearms are broadly defined. Section 5821 thus imposes a tax on
the making of a firearm "whether by manufacture, putting together,
alteration, any combination thereof, or otherwise." Similarly, to
transfer encompasses "to sell, assign, pledge, lease, loan, give
away, or otherwise dispose of" a firearm. 26 U.S.C. § 5848(10).
All these taxes are supplemented by comprehensive requirements
calculated to assure their collection. Any individual who wishes to
make a weapon, within the meaning of § 5821(a), is obliged, "prior
to such making," to declare his intention to the Secretary, and to
provide to the Treasury his fingerprints and photograph. 26 U.S.C.
§ 5821(e); Treas.Reg. § 179.78. The declaration must be "supported
by a certificate of the local chief of police . . . or such other
person whose certificate may . . . be acceptable. . . ." Treas.Reg.
§ 179.78. The certificate must indicate satisfaction that the
fingerprints and photograph are those of the declarant, and that
the firearm is intended "for lawful purposes."
Ibid. Any
person who wishes to transfer such a weapon may lawfully do so
only
Page 390 U. S. 89
if he first obtains a written order from the prospective
transferee on an "application form issued . . . for that purpose by
the Secretary." 26 U.S.C. § 6814(a). The application, supported by
a certificate of the local chief of police, and accompanied by the
transferee's fingerprints and photograph, must be approved by the
Secretary prior to the transfer. Treas.Reg. §§ 179.98, 179.99.
Finally, every person possessing such a firearm is obliged to
register his possession with the Secretary, unless he made the
weapon, or acquired it by transfer or importation, and the Act's
requirements as to transfers, makings, and importations "were
complied with." 26 U.S.C. § 5841. [
Footnote 5]
Failure to comply with any of the Act's requirements is made
punishable by fines and imprisonment. 26 U.S.C. § 5861. In
addition, § 5851 creates a series of supplementary offenses; it
declares unlawful the possession of any firearm which has "at any
time" been transferred or made in violation of the Act's
provisions, or which "has not been registered as required by
section 5841." Finally, § 5851 provides that, in prosecutions
conducted under that section,
"possession shall be deemed sufficient evidence to authorize
conviction, unless the defendant explains such possession to the
satisfaction of the jury. "
Page 390 U. S. 90
II
At the outset, it must be emphasized that the issue in this case
is not whether Congress has authority under the Constitution to
regulate the manufacture, transfer, or possession of firearms; nor
is it whether Congress may tax activities which are, wholly or in
part, unlawful. Rather, we are required to resolve only the narrow
issue of whether enforcement of § 5851 against petitioner, despite
his assertion of the privilege against self-incrimination, is
constitutionally permissible. The questions necessary for decision
are two: first, whether petitioner's conviction under § 5851 is
meaningfully distinguishable from a conviction under § 5841 for
failure to register possession of a firearm, and second, if it is
not, whether satisfaction of petitioner's obligation to register
under § 5841 would have compelled him to provide information
incriminating to himself. If, as petitioner urges, his conviction
under § 5851 is essentially indistinguishable from a conviction
premised directly upon a failure to register under § 5841, and if a
prosecution under § 5841 would have punished petitioner for his
failure to incriminate himself, it would follow that a proper claim
of privilege should have provided a full defense to this
prosecution. [
Footnote 6] To
these questions we turn.
III
The first issue is whether the elements of the offense under §
5851 of possession of a firearm "which has not been registered as
required by section 5841" differ in any significant respect from
those of the offense under § 5841 of failure to register possession
of a firearm. The United States contends that the two offenses,
despite the similarity
Page 390 U. S. 91
of their statutory descriptions, serve entirely different
purposes, in that the registration clause of § 5851 is intended to
punish acceptance of the possession of a firearm which, despite the
requirements of § 5841, was never registered by any prior
possessor, while § 5841 punishes only a present possessor who has
failed to register the fact of his own possession. If this
construction is correct, nothing in a prosecution under § 5851
would turn on whether the present possessor had elected to
register; his offense would have been complete when he accepted
possession of a firearm which no previous possessor had registered.
We need not determine whether this construction would be free from
constitutional difficulty under the Fifth Amendment, for we have
concluded that § 5851 cannot properly be construed as the United
States has urged. [
Footnote
7]
The United States finds support for its construction of § 5851
chiefly in the section's use of the past tense: the act stated to
be unlawful is "to possess any firearm which
has not been
registered as required by section 5841." (Emphasis added.) It is
contended that we may infer from this choice of tense that the
failure to register must necessarily precede the accused's
acquisition of possession. We cannot derive so much from so little.
We perceive no more in the draftsman's choice of tense
Page 390 U. S. 92
than the obvious fact that the failure to register must precede
the moment at which the accused is charged; we find nothing which
confines the clause's application to failures to register which
have occurred before a present possessor received the firearm. It
follows that the phrase fastened upon by the United States is, at
the least, equally consistent with the construction advanced by
petitioner.
If, however, nothing further were available, it might be
incumbent upon us to accept the Government's construction in order
to avoid the adjudication of a serious constitutional issue.
See, e.g., Ashwander v. Tennessee Valley Authority,
297 U. S. 288,
297 U. S. 348
(concurring opinion);
Crowell v. Benson, 285 U. S.
22,
285 U. S. 62.
But there are persuasive indications at hand which, in our view,
preclude adoption of the position urged by the United States.
Initially, we must note that each of the other two offenses defined
by § 5851 indicates very specifically that the violations of the
making or transfer provisions, on which the § 5851 offenses are
ultimately premised, can have occurred "at any time." An analogous
phrase in the registration clause would have made plain beyond all
question that the construction now urged by the United States
should be accepted; if this was indeed Congress' purpose, it is
difficult to see why it did not, as it did in the other clauses,
insert the few additional words necessary to make clear its wishes.
The position suggested by the United States would thus oblige us,
at the outset, to assume that Congress has, in this one clause,
chosen a remarkably oblique and unrevealing phrasing.
Similarly, it is pertinent to note that the transfer and making
clauses of § 5851 punish the receipt, as well as the possession, of
firearms; the registration clause, in contrast, punishes only
possession. Under the construction given § 5851 by the United
States, Congress might have been expected to declare unlawful, in
addition, the receipt of
Page 390 U. S. 93
firearms never previously registered; indeed, the receipt of the
firearm is, under that construction, the central element of the
offense. Congress' preference in the registration clause for
"possession," rather than "receipt," is satisfactorily explicable
only if petitioner's construction of § 5851 is adopted.
Third, and more important, we find it significant that the
offense defined by § 5851 is the possession of a firearm which has
not been registered "as required by section 5841." In the absence
of persuasive evidence to the contrary, the clause's final words
suggest strongly that the perimeter of the offense which it creates
is to be marked by the terms of the registration requirement
imposed by § 5841. In turn, § 5841 indicates quite precisely that
"[e]very person possessing a firearm" must, unless excused by the
section's exception, register his possession with the Secretary or
his delegate. Moreover, the Treasury regulations are entirely
unequivocal; they specifically provide that
"[e]very person in the United States possessing a firearm (a)
not registered
to him, . . . must execute an application
for the registration of such firearm. . . ."
Treas.Reg. § 179.120. (Emphasis added.)
The pertinent legislative history offers additional assistance,
and points against the Government's construction. The registration
clause was inserted into § 5851 by the Excise Tax Technical Changes
Act of 1958. 72 Stat. 1428. The two committee reports indicate, in
identical terms, [
Footnote 8]
that the existing section was thought inadequate because, although
it defined as an unlawful act the possession of any firearm which
had been made or transferred in violation of the Firearms Act, it
failed "to so
Page 390 U. S. 94
define the possession of an unregistered firearm." H.R.Rep. No.
481, 85th Cong., 1st Sess., 195; S.Rep. No. 2090, 85th Cong., 2d
Sess., 212. The section, as amended, "specifically defines such
possession of an unregistered firearm as an unlawful act."
Ibid. It is useful to note that the committees did not
suggest that the failure to register must have preceded the
acquisition of possession. Further, the reports indicate that the
proposed amendment was intended to make available in prosecutions
for possession of an unregistered firearm the presumption already
contained in § 5851; they conclude that the "primary purpose of
this change is to simplify and clarify the law and to aid in
prosecution." H.R.Rep. No. 481,
supra, at 196; S.Rep. No.
2090,
supra, at 212.
We infer that the amendment was thought to have two purposes.
First, it would complete the series of supplementary offenses
created by § 5851 by adding to those premised on a making or
transfer one bottomed on a failure to register. Second, it would
facilitate the prosecution of failures to register by permitting
the use of the presumption included in § 5851. It would thus "aid
in prosecution" of conduct also made unlawful by § 5841. Both these
purposes are fully consistent with the construction of § 5851 urged
by petitioner; but only the first offers any support to the
position suggested by the United States.
We are unable to escape the conclusion that Congress intended
the registration clause of § 5851 to incorporate the requirements
of § 5841, by declaring unlawful the possession of any firearm
which has not been registered by its possessor, in circumstances in
which § 5841 imposes an obligation to register. The elements of the
offenses created by the two sections are therefore identical. This
does not, however, fully resolve the question of whether any
hazards of incrimination which stem from the registration
Page 390 U. S. 95
requirement imposed by § 5841 must be understood also to inhere
in prosecutions under § 5851. Two additional distinctions between
the offenses have been suggested, and we must examine them.
First, it has been said that the offenses differ in emphasis in
that § 5851 chiefly punishes possession, while § 5841 punishes a
failure to register.
Cf. Frye v. United States, 315 F.2d
491, 494;
Castellano v. United States, 350 F.2d 852, 854.
We find this supposed distinction entirely unpersuasive, for, as we
have found, the possession of a firearm and a failure to register
are equally fundamental ingredients of both offenses. Second, it
has been suggested that § 5841 creates a "status of unlawful
possession" which, if assumed by an individual, denies to him the
protection of the constitutional privilege.
Castellano v.
United States, supra, at 854. It has evidently been thought to
follow that the privilege may be claimed in prosecutions under §
5841, but not in those under § 5851. This is no less unpersuasive;
for reasons discussed in
Marchetti v. United States,
decided today,
ante at
390 U. S. 51-52,
we decline to hold that the performance of an unlawful act, even if
there exists a statutory condition that its commission constitutes
a waiver of the constitutional privilege, suffices to deprive an
accused of the privilege's protection. We hold that petitioner's
conviction under the registration clause of § 5851 is not properly
distinguishable from a conviction under § 5841 for failure to
register, and that both offenses must be deemed subject to any
constitutional deficiencies arising under the Fifth Amendment from
the obligation to register.
IV
We must now consider whether, as petitioner contends,
satisfaction of his obligation to register would have compelled him
to provide information incriminating to himself. [
Footnote 9]
Page 390 U. S. 96
We must first mark the terms of the registration requirement.
The obligation to register is conditioned simply upon possession of
a firearm, within the meaning of § 5848(1). Not every possessor of
a firearm must, however, register; one who made the firearm, or
acquired it by transfer or importation, need not register if the
Act's provisions as to transfers, makings, and importations "were
complied with." If those requirements were not met, or if the
possessor did not make the firearm, and did not acquire it by
transfer or importation, he must furnish the Secretary of the
Treasury with his name, address, the place where the firearm is
usually kept, and the place of his business or employment. Further,
he must indicate his date of birth, social security number, and
whether he has ever been convicted of a felony. Finally, he must
provide a full description of the firearm.
See 26 U.S.C. §
5841; Treas.Reg. § 179.120; Internal Revenue Service Form 1
(Firearms).
The registration requirement is thus directed principally at
those persons who have obtained possession of a firearm without
complying with the Act's other requirements, and who therefore are
immediately threatened by criminal prosecutions under §§ 5851 and
5861. They are unmistakably persons "inherently suspect of criminal
activities."
Albertson v. SACB, 382 U. S.
70,
382 U. S. 79. It
is true, as the United States emphasizes, that registration is not
invariably indicative of a violation of the Act's requirements;
there are situations, which the United States itself styles
"uncommon," [
Footnote 10] in
which a possessor
Page 390 U. S. 97
who has not violated the Act's other provisions is obliged to
register. [
Footnote 11]
Nonetheless, the correlation between obligations to register and
violations can only be regarded as exceedingly high, and a
prospective registrant realistically can expect that registration
will substantially increase the likelihood of his prosecution.
Moreover, he can reasonably fear that the possession established by
his registration will facilitate his prosecution under the making
and transfer clauses of § 5851. In these circumstances, it can
scarcely be said that the risks of criminal prosecution confronted
by prospective registrants are "remote possibilities out of the
ordinary course of law,"
Heike v. United States,
227 U. S. 131,
227 U. S. 144;
yet they are compelled, on pain of criminal prosecution, to provide
to the Secretary both a formal acknowledgment of their possession
of firearms, and supplementary information likely to facilitate
their arrest and eventual conviction. The hazards of incrimination
created by the registration requirement can thus only be termed
"real and appreciable."
Reg. v. Boyes, 1 B. & S. 311,
330;
Brown v. Walker, 161 U. S. 591,
161 U. S.
599-600.
We are, however, urged by the United States, for various
disparate reasons, to affirm petitioner's conviction.
Page 390 U. S. 98
It is first suggested that the registration requirement is a
valid exercise of the taxing powers, in that it is calculated
merely to assure notice to the Treasury of all taxable firearms. We
do not doubt, as we have repeatedly indicated, [
Footnote 12] that this Court must give
deference to Congress' taxing powers, and to measures reasonably
incidental to their exercise; but we are no less obliged to heed
the limitations placed upon those powers by the Constitution's
other commands. We are fully cognizant of the Treasury's need for
accurate and timely information, but other methods, entirely
consistent with constitutional limitations, exist by which such
information may be obtained.
See generally Counselman v.
Hitchcock, 142 U. S. 547,
142 U. S. 585.
See also Adams v. Maryland, 347 U.
S. 179;
Murphy v. Waterfront Commission,
378 U. S. 52.
Accordingly, nothing we do today will prevent the effective
regulation or taxation by Congress of firearms.
Nonetheless, these statutory provisions, as now written, cannot
be brought within any of the situations in which the Court has held
that the constitutional privilege does not prevent the use by the
United States of information obtained in connection with regulatory
programs of general application.
See United States v.
Sullivan, 274 U. S. 259;
Shapiro v. United States, 335 U. S.
1. For reasons given in
Marchetti v. United States,
supra, and
Grosso v. United States, ante, p.
390 U. S. 62, we
have concluded that the points of significant dissimilarity between
these circumstances and those in
Shapiro and
Sullivan preclude any proper application of those cases
here. The questions propounded by § 5841, like those at issue in
Albertson, supra, are "directed at a highly selective
group inherently suspect of criminal activities"; they concern
Page 390 U. S. 99
not "an essentially noncriminal and regulatory area of inquiry,"
but "an area permeated with criminal statutes." 382 U.S. at
382 U. S. 79.
There are, moreover, no records or other documents here to which
any "public aspects" might reasonably be said to have attached.
Compare Shapiro v. United States, supra, at
335 U. S. 34, and
Marchetti v. United States, supra.
The United States next emphasizes that petitioner has
consistently contended that §§ 5841 and 5851 are unconstitutional
on their face; it urges that this contention is foreclosed by the
inclusion in the registration requirement of situations in which
the obligation to register cannot produce incriminating
disclosures. We recognize that there are a number of apparently
uncommon circumstances in which registration is required of one who
has not violated the Firearms Act; the United States points chiefly
to the situation of a finder of a lost or abandoned firearm.
[
Footnote 13]
Compare
United States v. Forgett, 349 F.2d 601. We agree that the
existence of such situations makes it inappropriate, in the absence
of evidence that the exercise of protected rights would otherwise
be hampered, to declare these sections impermissible on their face.
Instead, it appears from the evidence now before us that the rights
of those subject to the Act will be fully protected if a proper
claim of privilege is understood to provide a full defense to any
prosecution either for failure to register under § 5841 or, under §
5851, for possession of a firearm which has not been
registered.
Finally, we are asked to avoid the constitutional difficulties
which we have found in §§ 5841 and 5851 by imposing restrictions
upon the use by state and federal authorities of information
obtained as a consequence of the registration requirement. We note
that the provisions
Page 390 U. S. 100
of 26 U.S.C. § 6107 [
Footnote
14] are applicable to the special occupational taxes imposed by
§ 5801, although not, apparently, to the making and transfer taxes
imposed by §§ 5811 and 5821. In these circumstances, we decline,
for reasons indicated in
Marchetti, supra, and
Grosso,
supra, to impose the restrictions urged by the United
States.
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 § 5841 or for
possession of an unregistered firearm under § 5851.
V
It remains only to determine the appropriate disposition of this
case. Petitioner has seasonably and consistently asserted a claim
of privilege, but the courts below, believing the privilege
inapplicable to prosecutions under § 5851, evidently did not assess
the claim's merits. It would therefore ordinarily be necessary to
remand the cause to the District Court, with instructions to
examine the merits of the claim. We note, however, that there can
be no suggestion here that petitioner has waived his privilege, and
that, moreover, the United States has conceded that petitioner's
privilege against
Page 390 U. S. 101
self-incrimination must be found to have been impermissibly
infringed if his contentions as to the proper construction of §§
5851 and 5841 are accepted. Brief for the United States 8.
Accordingly, the District Court would be obliged in any additional
proceeding to conclude that "there is reasonable ground to
apprehend danger to the witness from his being compelled to
answer."
Reg. v. Boyes, supra, at 330. It follows that any
proceeding in the District Court must inevitably result in the
reversal of petitioner's conviction. We have plenary authority
under 28 U.S.C. § 2106 to make such disposition of the case "as may
be just under the circumstances."
See Yates v. United
States, 354 U. S. 298,
354 U. S.
327-331;
Grosso v. United States, supra. It
would be neither just nor appropriate to require the parties and
the District Court to commence an entirely needless additional
proceeding. Accordingly, the judgment of the Court of Appeals
is
Reversed.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
[
Footnote 1]
Petitioner's motion asserted merely that § 5851 was
"unconstitutional," and the order denying the motion does not
indicate more precisely the substance of petitioner's contentions.
His subsequent arguments, both in the courts below and here, have,
however, consistently asserted a claim of the constitutional
privilege. No suggestion is made by the Government that the claim
of privilege was not sufficiently made.
[
Footnote 2]
Petitioner's plea of guilty did not, of course, waive his
previous claim of the constitutional privilege.
See, e.g.,
United States v. Ury, 106 F.2d 28.
[
Footnote 3]
The section provides that
"It shall be unlawful for any person to receive or possess any
firearm which has at any time been transferred in violation of
sections 5811, 5812(b), 5813, 5814, 5844, or 5846, or which has at
any time been made in violation of section 5821, or to possess any
firearm which has not been registered as required by section 5841.
Whenever on trial for a violation of this section the defendant is
shown to have or to have had possession of such firearm, such
possession shall be deemed sufficient evidence to authorize
conviction, unless the defendant explains such possession to the
satisfaction of the jury."
[
Footnote 4]
The views of a subsequent Congress, of course, provide no
controlling basis from which to infer the purposes of an earlier
Congress.
See Rainwater v. United States, 356 U.
S. 590,
356 U. S. 593;
United States v. Price, 361 U. S. 304,
361 U. S. 313.
Nonetheless, it is pertinent to note that the Committee on Ways and
Means of the House of Representatives, while reporting in 1959 on
certain proposed amendments to the Act, stated that the
"primary purpose of [the Firearms Act] was to make it more
difficult for the gangster element to obtain certain types of
weapons. The type of weapon with which these provisions are
concerned are the types it was thought would be used primarily by
the gangster-type element."
H.R.Rep. No. 914, 86th Cong., 1st Sess., 2.
[
Footnote 5]
The section provides that
"Every person possessing a firearm shall register, with the
Secretary or his delegate, the number or other mark identifying
such firearm, together with his name, address, place where such
firearm is usually kept, and place of business or employment, and,
if such person is other than a natural person, the name and home
address of an executive officer thereof. No person shall be
required to register under this section with respect to a firearm
which such person acquired by transfer or importation or which such
person made, if provisions of this chapter applied to such
transfer, importation, or making, as the case may be, and if the
provisions which applied thereto were complied with."
[
Footnote 6]
Indeed, so much is recognized by the Government; it has stated
that
"[w]e concede that, if petitioner's reading of the two
provisions were right . . . , petitioner's conviction under Section
5851 would not be valid."
Brief for the United States 8.
[
Footnote 7]
The Government's position is generally supported by several
cases in the courts of appeals.
See, in addition to the
opinion below,
Frye v. United States, 315 F.2d 491;
Starks v. United States, 316 F.2d 45;
Mares v. United
States, 319 F.2d 71;
Sipes v. United States, 321 F.2d
174;
Taylor v. United States, 333 F.2d 721;
Castellano
v. United States, 350 F.2d 852;
Pruitt v. United
States, 364 F.2d 826;
Decker v. United States, 378
F.2d 245. None of these cases, however, undertook an extended
examination of the relationship between §§ 5851 and 5841.
Compare Lovelace v. United States, 357 F.2d 306, 309,
and Mansfield, The
Albertson Case: Conflict
Between the Privilege Against Self-Incrimination and the
Government's Need for Information, 1966 Sup.Ct.Rev. 103, 158159, n.
95.
[
Footnote 8]
The language in the reports was evidently taken without change
or elaboration from the recommendations submitted to the House
Committee on Ways and Means by the Treasury.
See Hearings
before House Committee on Ways and Means on Excise Tax Technical
and Administrative Problems, 84th Cong., 1st Sess., 185, 211.
[
Footnote 9]
We note that § 5841 has several times been held to require
incriminating disclosures, in violation of the Fifth Amendment
privilege against self-incrimination.
See Russell v. United
States, 306 F.2d 402;
Dugan v. United States, 341
F.2d 85;
McCann v. United States, 217 F. Supp. 751;
United States v. Fleish, 227 F.
Supp. 967.
See also Lovelace v. United States, supra,
at 309.
[
Footnote 10]
In particular, the United States emphasizes the position of a
finder of a lost or abandoned firearm. Brief for the United States
20.
[
Footnote 11]
We must note, however, that certain of these prospective
registrants might be threatened by prosecution under state law for
possession of firearms, or similar offenses. It is possible that
such persons would be obliged, if they registered in compliance
with § 5841, to provide information incriminating to themselves.
Such hazards would, of course, support a proper claim of privilege.
See Malloy v. Hogan, 378 U. S. 1. For
illustrations of state statutes under which such prosecutions might
occur,
see Conn.Gen.Stat.Rev. § 53-202 (1958); Del.Code
Ann., Tit. 11, § 465 (1953); Hawaii Rev.Laws § 157-8 (1955); Iowa
Code § 696.1 (1966); Kan.Stat.Ann. § 21-2601 (1964); La.Rev.Stat. §
40:1752 (1950); Minn.Stat. § 609.67 (1965); N.J.Rev.Stat., Tit. 2A,
§ 151-50 (1953). We have discovered no state statute under which
the present petitioner might have been subject to prosecution for
acts registerable under § 5841, and he has not contended that
registration would have incriminated him under state law.
[
Footnote 12]
See, for example, Sonzinsky v. United States,
300 U. S. 506;
Marchetti v. United States, supra.
[
Footnote 13]
Again, we note that these registrants might be confronted by
hazards of prosecution under state law, and that those hazards
might support a proper claim of privilege.
See supra,
n 11.
[
Footnote 14]
Section 6107 provides that
"In the principal internal revenue office in each internal
revenue district there shall be kept, for public inspection, an
alphabetical list of the names of all persons who have paid special
taxes under subtitle D or E within such district. Such list shall
be prepared and kept pursuant to regulations prescribed by the
Secretary or his delegate, and shall contain the time, place, and
business for which such special taxes have been paid, and upon
application of any prosecuting officer of any State, county, or
municipality there shall be furnished to him a certified copy
thereof, as of a public record, for which a fee of $1 for each 100
words or fraction thereof in the copy or copies so requested may be
charged."
The special taxes to which the section refers include those
imposed by 26 U.S.C. § 5801.
MR. CHIEF JUSTICE WARREN, dissenting.
For reasons stated in my dissent in
Marchetti v. United
States and
Grosso v. United States, ante, p.
390 U. S. 77, I
cannot agree with the result reached by the Court in this case.