Miniseries, Part III - Felons and Persons with a Mental Impairment

  • Date:
  • June 27th, 2019

By: Catie Carberry

[Ed. Note: As we discussed here, this post is part of a three-part series on gun laws in the Center's Repository of Historical Gun Laws, written by Center research assistant Catie Carberry. This post, like the Repository, is exemplary and not exhaustive.]


Were bans on convicts possessing firearms “unknown before World War I?”

As discussed in the prior post, there are laws from the Revolutionary War that disarmed persons who failed to take an oath of loyalty. There are also laws in the Repository preceding that time that prohibited the sale to Native Americans “in order to prevent such dangers of isolated murders and assassinations” and because such sale was “very poisonous and destructive to the English.”

However, there is not a law that explicitly addresses taking weapons from a person who has been convicted of a crime in the Repository until 1885. That law came out of Florida, and it authorized sheriffs and other officers making an arrest to “take possession of any arms found upon the person arrested under this act.” Law enforcement officials were then to retain the weapons until after the trial of the person arrested, and if the person was convicted then his arms were forfeited. Only the arms that were on the person are covered by the law. The statute does not reference any other arms that the person convicted possessed or may later purchase, and thus seems to only cover those weapons that were on their person at the time of arrest.

Laws that ban possession of some firearms by felons begin to pop up in the Repository in 1914. (Note that some of these laws are currently in the process of being added to the Repository, and so the link is to HeinOnline.) These are the same laws that were already referenced in our first blog post in this series out of North Dakota, California, Nevada and Oregon, which banned possession of certain weapons capable of being concealed by aliens and felons (among others in some). As mentioned in that post, the statute adopted in all four states is vastly similar in phrasing and effect. All of these statutes refer to a person who has been convicted of a felony as opposed to a person who has been convicted of a crime of violence.

There is currently only one law on the Repository that completely bans possession of all firearms by felons (not just those capable of being concealed). It was enacted by Rhode Island in 1927, and only concerns those who have been convicted of a crime of violence.

Mental impairment

Are current versions of bans on the mentally ill of the “mid-20th century vintage?”

The number of laws currently available on the Repository concerning persons with a mental impairment is limited, and they are all from the nineteenth and twentieth century. The earlier laws largely address carrying by persons in a state of intoxication, including a law from 1868 out of Kansas and a law from 1883 out of Wisconsin. These laws are not permanent bans in that they only apply while a person is presently in a state of intoxication, and they do not address general possession of firearms. By contrast, in 1931 California enacted a law that prohibited possession of a firearm capable of being concealed by those addicted to the use of any narcotic drug.

There are currently two statutes in the Repository that address persons who are mentally ill. The first was enacted in 1887 in Kansas and it provided that those of “notoriously unsound mind” could not be provided with any dangerous weapons, including pistols and revolvers. The second was enacted by Hawaii in 1933, and under it no person “adjudged insane” could be issued a concealed carry license.

As in the other two blogs in this series, these laws lead to more questions. Are laws addressing the mentally ill and felons a late nineteenth and early twentieth century invention? If so, why did they begin to appear when they did? Was it the result of the Industrial Revolution? The proliferation of the use of fingerprinting in the United States? Is it significant that the appearance of these laws in the Repository coincides with a flurry of laws concerning nonresidents and aliens?