Can State prohibit member of hate group from buying guns?

[Spats McGee]

The judicial setting is not the issue. It's the fact that (the State will argue) no one is being compelled to answer the question. Besides, the A5 has never been held to apply to documents, as far as I can remember.

I don't understand the part of your statement which says "It's the fact that (the State will argue) no one is being compelled to answer the question."

OK, in the strictest sense a person isn't "compelled" to answer the question. However, if they DON'T answer the question, then the consequence is denial of their "right to keep and bear arms" under the second amendment.

So it's really being posted "Answer...or else!"

All I'm getting at is that this is not an A5 issue. The fact that NJ asks the question on form, and may use the answer to deny your A2 rights may be wrong. It may be despicable. It may be forcing them to choose the lesser of two evils, but it's not an A5 issue. NJ is not compelling anyone to testify, and the answer is documentary in nature. That's all I'm getting at. As far as "the State will argue," I'm just pointing out what I think the State would argue to defend its use of the question.

Consider tax forms. You are required by law to file your taxes every year. You are required to answer honestly on the forms. You must certify that your answers are correct. Is it a violation of Michael Methhead's A5 rights to require him to report the $25K that he earned by selling crack last year? No.

 

[gfanikf]

Consider tax forms. You are required by law to file your taxes every year. You are required to answer honestly on the forms. You must certify that your answers are correct. Is it a violation of Michael Methhead's A5 rights to require him to report the $25K that he earned by selling crack last year? No.

Ah I loved reading that case law for that in law school, it's hilarious. It's also quite correct in it's reasoning.

 

[Spats McGee]

gfanikf, one of my personal favorites was about somebody whose illegal slot machines were busted up by revenooers. He then claimed depreciation on the machines.

 

[gfanikf]

gfanikf, one of my personal favorites was about somebody whose illegal slot machines were busted up by revenooers. He then claimed depreciation on the machines.

Nice, that one sounds vaguely familiar. As dry as tax law sounds, it has some rather humorous moments with some of those Revenue Rulings and Commissioner Cases

 

[Spats McGee]

Law school's been a while back, but I seem to recall: (a) the court said he actually could claim depreciation, but (b) he also got in trouble for not reporting the income. The tax code apparently doesn't exempt illegal income. Go figure.

 

[Master Blaster]

It really doesnt surprise me that the PRNJ (Peoples Republic of New Jersey) has a question on its firearms permit form that would have disqualified most of the Founding Fathers of our country from buying a firearm had they been asked to answer that question honestly in 1776. Really it s a pointless question as anyone who is truely dangerous would simply lie.

A good reason to move across the state line to PA or Delaware.

 

[gfanikf]

Law school's been a while back, but I seem to recall: (a) the court said he actually could claim depreciation, but (b) he also got in trouble for not reporting the income. The tax code apparently doesn't exempt illegal income. Go figure.

Yep, that's it. I love that principle, remember don't forget to report all your crack dealing earnings, but you can claim a loss on broken scales and money counters. lol

 

[Colonel]

Is it a violation of Michael Methhead's A5 rights to require him to report the $25K that he earned by selling crack last year? No.

Really?

Then why is it a violation of David Dirtball's A5 rights to compel him to register an illegally-owned (because he's a convicted felon) firearm?

I believe this is an actual case.

 

[Spats McGee]

Yes, that's a real case. I want to say it's called Hayes, it's out of Texas and was about 1968. It's also a very good question. Without doing any research on the issue, here's my gut reaction:

1) Michael Methhead is required to report the income from his sales, not necessarily say "I was selling crack" on the form. (In all candor, though, I do not know the exact wording on tax forms.)

2) If I remember the machine gun registration case correctly, the problem was that the very act of registering was admitting to the crime, because Hayes was already a convicted felon. (In registering, he has to say, "I have a machine gun.") The fact that the state sought to impose criminal sanctions for non-registration was the compulsion. The irony here is that law-abiding citizens can be forced to register machine guns, but that felons cannot, because of that A5 protection.

 

[RetiredUSNChief]

All I'm getting at is that this is not an A5 issue. The fact that NJ asks the question on form, and may use the answer to deny your A2 rights may be wrong. It may be despicable. It may be forcing them to choose the lesser of two evils, but it's not an A5 issue. NJ is not compelling anyone to testify, and the answer is documentary in nature. That's all I'm getting at. As far as "the State will argue," I'm just pointing out what I think the State would argue to defend its use of the question.

Consider tax forms. You are required by law to file your taxes every year. You are required to answer honestly on the forms. You must certify that your answers are correct. Is it a violation of Michael Methhead's A5 rights to require him to report the $25K that he earned by selling crack last year? No.

I've done some research on this because of this debate, because it's a fascinating subject of fifth amendment applicability.

Here's an interesting link about A5 and taxes, which may have some parallels with this discussion:

http://taxcourthelp.net/catch-22-form-1040-and-the-fifth-amendment/

For the fifth amendment to apply at all, a person must actually exercise it...if they don't, then they have been presumed to waive it.

Since petitioner made incriminating disclosures on his tax returns instead of claiming the privilege, as he had the right to do, his disclosures were not compelled incriminations. Here, where there is no factor depriving petitioner of the free choice to refuse to answer, the general rule applies that, if a witness does not claim the privilege, his disclosures will not be considered as having been “compelled” within the meaning of the Fifth Amendment.

However, this places a person in a Catch-22 situation...if he exercies his fifth amendment right NOT to file certain information because it may be incriminating, then he can STILL end up in jail for willfully not filing a return.

Of course, it’s easy for the Court to say we have a free choice not to give information on a return, but if you don’t file a return you could end up in jail for ‘willful failure to file.” If you put something like “5th Amendment” in any space where information is supposed to go, you will be charged with filing a frivolous return. Happily, the Courts have also found that even if you don’t properly assert the privilege, having asserted it is a defense against failure to file.

So you can't file a signed copy of your tax forms without actually waiving your fifth amendment rights.


Now, not being an attorney, it seems to me that this is a fairly parallel situation with enough similarities to say that the current scenario with respect to the OP is also applicable with respect to the fifth amendment.

If you've found any other interesting links either way, I'd be really interested in reading through them to see what they say.


EDIT:

Here's an additional link with some interesting stuff about the applicability of the fifth amendment:

http://www.okbar.org/obj/articles_02/sa100502.htm

 

[Spats McGee]

There's no question but that it's an interesting area of A5 law. Since I'm on the prosecution side these days, and only in traffic court, I don't do much A5 research. I think the other important distinction may be the mandatory nature of disclosure: (1) You must file a tax return. (2) In the case of registering the machine gun, above, the defendant was required to register the gun in question. (3) While you may have a right to have a firearm, it is not required. The question need only be answered if you choose to exercise your 2A right.

 

[bluethunder1962]

I would say NO. BUT it would be a great way to keep an eye on them. FFL just put a pair of eyes on the app telling atf to keep an eye on them.

 

[GWARGHOUL]

Not to turn this into a political debate
Not quite a hate group, although some would argue otherwise, but can't that be said of some Tea Party folks??? If this isn't already in the courts, this darn well should be. What's the cliche? Slippery Slope?

Nothing boils my blood quicker than nonsense like this. Tea Party folks hate big government, and taxes.

Jim Crow was a Democrat, if you aren't familiar with his affiliations with a "hate group" and their hate group, you should probably learn a little bit of history before making comments with such ignorance.

Speaking of history, Nazi's were nationalist socialists, which align closely with some "extreme" Democrats. "Hate group".

Are there some racists in the Tea Party crowd? Probably so, but it is not "Tea Party" to be racist.

As for the question... no laws on the books in my state, and we are all familiar with the federal forms.. so.. no..

 

[Sam1911]

Nothing boils my blood quicker than nonsense like this. Tea Party folks hate big government, and taxes.

Let's STOP talking about the flippin' TEA Party! They were just used as a whacky, off-the-wall example. No one here is actually claiming ANYTHING negative about the TEA Party. Debating them is OFF TOPIC for the question being asked.