In United States v. Freed (1971) 401 U.S. 601, the United States Supreme Court noted that it had previously found certain provisions of the National Firearms Act (NFA) to violate the Fifth Amendment. (See Haynes v. United States (1968) 390 U.S. 85, 96-100.)
In response to the Haynes opinion, Congress addressed the fatal errors, revising the NFA by specifically including the privilege or immunity provision of 26 United States Code section 5848(a).
As noted in Freed, "The scope of the privilege extends, of course, to the hazards of prosecution under state law for the same or similar offenses." (Freed, supra, 401 U.S. at p. 604, italics added.)
In Freed, a California resident and his wife were indicted for possessing "unregistered" hand grenades. Registration required information be divulged and certain tax burdens be met before transfer could be done under the revised NFA. Freed responded to the indictment, contending his Fifth Amendment rights were violated as established in Haynes, and the NFA as interpreted by Haynes required evidence of knowledge, which his indictment failed to allege. Justice Douglas rejected the contentions, emphasizing that Congress had specifically created the privilege provision of 26 United States Code section 5848 in response to the Haynes opinion and had thereby cured the Fifth Amendment problem. (United States v. Freed, supra, 401 U.S. at p. 605.)
Moreover, the NFA required no scienter element. (United States v. Freed, at p. 607.)
In so ruling, the Supreme Court rested its conclusion on the Solicitor General's "representations to us that no information filed is as a matter of practice disclosed to any law enforcement authority," and that "the information in the hands of Internal Revenue Service, as a matter of practice, is not available to state or other federal authorities and, as a matter of law, cannot be used as evidence in a criminal proceeding with respect to a prior or concurrent violation of law." (Id. at pp. 604-606.)
It emphasized this point in assessing the self-incriminatory potential of the statute to be " 'merely trifling or imaginary.' " (Id. at p. 606.)
It found a lack of self-incrimination potential because of "the unavailability of the registration data, as a matter of administration, to local, state, and other federal agencies. ... Since the state and other federal agencies never see the information, Freed is left in the same position as if he had not given it, but 'had claimed his privilege in the absence of a ... grant of immunity.' This, combined with the protection against use to prove prior or concurrent offenses, satisfies the Fifth Amendment requirements respecting self-incrimination." (Ibid.)