More importantly I've seen a bunch of references to cases that claim the 5th Amendment means a felon can't be charged for not registering a firearm they aren't allowed to have in the first place, as they would have to incriminate themselves to register it in some sort of chicken or egg cycle.
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49ers Aldon Smith, CA Assault Weapons Law, and Interstate Commerce
- Thread starter JimDandy
- Start date
More importantly I've seen a bunch of references to cases that claim the 5th Amendment means a felon can't be charged for not registering a firearm they aren't allowed to have in the first place, as they would have to incriminate themselves to register it in some sort of chicken or egg cycle.
Frank Ettin
Administrator
What makes you think he was charged with possession of an unregistered assault weapon?SVO said:I understand the charged of possession of an illegal weapon by state law. I don't understand being charged with possession of an unregistered weapon when the weapon is illegal by state law and can't be registered with the state....
The news article linked to in the OP says:
...Aldon Smith has been charged with felony possession of assault weapons...
...The Santa Clara County District Attorney’s announced Wednesday that 24-year-old Smith has been charged with three felony counts of assault weapon possession,...
...None of the five weapons were registered with the California Department of Justice, according to authorities....
The lack of registration of 'Assault weapons' is somewhat of a 'gating factor' and exposes one to punishment, which might be avoided if the weapons had been properly registered when that was possible.
The crimes are in Penal Code 30600
The crimes are in Penal Code 30600
and PC 30605 for possession30600. (a) Any person who, within this state,
manufactures or causes to be manufactured,
distributes, transports, or imports into the state,
keeps for sale, or offers or exposes for sale, or
who gives or lends any assault weapon or any .50 BMG rifle,
except as provided by this chapter,
is guilty of a felony, and upon conviction
shall be punished by imprisonment pursuant to subdivision (h) of
Section 1170 for four, six, or eight years.
It would appear that Smith might reasonably be charged with violating 30600 for importing, and 30605 for possession.30605. (a) Any person who, within this state, possesses any assault
weapon, except as provided in this chapter, shall be punished by
imprisonment in a county jail for a period not exceeding one year, or
by imprisonment pursuant to subdivision (h) of Section 1170.
It would be interesting to see how that interacts with HAYNES v. UNITED STATES, 390 U.S. 85 (1968)
IF you can't possess it without registering it -
AND the registry is closed
THEN isn't it a 5A violation similar to, but not exactly like Haynes?
IF you can't possess it without registering it -
AND the registry is closed
THEN isn't it a 5A violation similar to, but not exactly like Haynes?
Frank Ettin
Administrator
No.JimDandy said:...It would be interesting to see how that interacts with HAYNES v. UNITED STATES, 390 U.S. 85 (1968)
IF you can't possess it without registering it -
AND the registry is closed
THEN isn't it a 5A violation similar to, but not exactly like Haynes?...
Smith was charged with possession of a rifle which is illegal to possess in California. That's really all there is to it.
If Smith had possessed the rifle as a resident of California before its possession became illegal, and if when possession became illegal he had registered is as was then provided for under California law, those facts would have been an affirmative defense to the charge of possession of an illegal rifle. But neither of those facts is true.
So it's simply a matter that Smith was found in possession of contraband (i. e., something which may not lawfully possessed). The long expired California amnesty is irrelevant.