United States v. Freed

PETITIONER: United States
LOCATION: Edward Coolidge's Home

DECIDED BY: Burger Court (1970-1971)

CITATION: 401 US 601 (1971)
ARGUED: Jan 11, 1971
DECIDED: Apr 05, 1971

Facts of the case


Media for United States v. Freed

Audio Transcription for Oral Argument - January 11, 1971 in United States v. Freed

Warren E. Burger:

We’ll hear arguments next in number 345, United States against Freed and Sutherland.

Mr. Zinn, you may proceed.

Matthew J. Zinn:

Mr. Chief Justice and may it please the Court.

This case is here on the Government’s direct appeal from a decision of the District Court for the Central District of California dismissing a two-count indictment against the appellees, the first for conspiracy to possess and the second for the completed substantive act of possession of unregistered hand grenades in violation of 26 U.S.C. Section 5861 (d).

That provision which appears on page 4 of our brief makes it unlawful for any person “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.”

This involved only hand grenades?

Matthew J. Zinn:

That’s correct Mr. Justice Harlan only hand grenades.

And I guess I ought to point out now although I was going to do so later that the provisions that we are concerned with here do not apply to all firearms, but generally to sawed-off rifles and shotguns, short-barrel rifles and shotguns, silencers, machineguns, other automatic weapons and destructive devices such as bombs, rockets and hand grenades.

The District Court dismissed the indictment on two constitutional grounds.

First, it ruled that Section 5841 (c) which requires that certain information be furnished the Government before a firearm is registered -- I beg your pardon, before a firearm is transferred and Section 5861 (d) are unconstitutional because Section 5841 (c) requires appellees to furnish evidence incriminating to themselves under California law making it unlawful to possess hand grenades.

Second, the District Court rule that Section 5861 (b) violates the Due Process Clause because it does not require the Government to allege and prove that a transferee obtained possession of a firearm with specific knowledge and intent that the firearm be unregistered.

Section 5861 (d) and Section 5841 (c) were enacted as part of the Gun Control Act of 1968.

That Act was passed by Congress in response to the violence occurring earlier in 1968 and to the fact that during 1967 more than 130,000 people in the United States were victimized by gunman.

Title II of the Gun Control Act of 1968 would which is concerned here substantially amended the National Firearms Act which this Court had dealt with in Haynes against the United States which was decided in January of 1968 together with Marchetti and Grosso.

In Haynes, this Court concluded that the old registration and possession provisions of the National Firearms Act compelled self-incrimination and that the privilege was a complete defense to a prosecution under either the possession or registration provisions.

In amending the National Firearms Act in October of 1968, Congress set out to cure the constitutional infirmities which were pointed out by Mr. Justice Harlan in his opinion as existing under the prior statutory scheme.

The pertinent legislative history is replete with congressional references to its purpose to overcome the prior infirmities and in this respect the Congress was doing just what Mr. Justice Harlan invited it to do in his opinion in Haynes.

He explained that a valid statute could be enacted which would achieve substantially the same purposes as the statutory scheme dealt with by the court in Haynes and which would not run a foul of constitutional limitations.

Our position here is that Congress has done just this --

Was the deal that you got now, is that a product of the Department of Justice that the grant was dealt?

Matthew J. Zinn:

Yes sir, it is.

I think it would be helpful at the outset for me to describe briefly how the new National Firearms Act works in actual practice.

To illustrate the provisions of the new act, let us assume that a manufacturer who is license to manufacture hand grenades in fact does so.

He is required to register the hand grenades with the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service that's the ATFD by giving notice of their manufacture and of the serial number of each grenade.

This is required by Section 5841 (d) and (c) which is set out on pages 3 and 4 of our brief.

Upon giving the notice to the ATFD, the hand grenades are then registered to the manufacturer.

If he wishes to transfer them to another, he may do so lawfully and the transferee may receive them lawfully only in accordance with the provisions of Section 5812 of Title 26 which appears on page 2 and 3 of our brief.

Under Section 5812, a grenade may not be transferred unless the transferor has filed the requisite application in duplicate with ATFD and has paid the transfer tax which is $200.00 in the case of grenade.

The transferor, the transferee and the firearm to be transferred must be identified in the application.

In addition, they must be appended to the application -- a set of fingerprints of the transferee, his photograph and a statement from the local chief of police or other similar official that receive or possession of the firearm would not place the transferee in violation of state or local law.