Litigation Highlight: State of Washington v. United States Department of State

This case traces its beginnings to a nonprofit by the name of Defense Distributed. Defense Distributed’s avowed purpose is to facilitate “global access to, and the collaborative production of, information and knowledge related to the three-dimensional (3D) printing of arms.” To that end, in 2013 the organization published computer aided design (CAD) data files that would enable users to print various guns using a 3D printer. The Department of State promptly advised Defense Distributed to take down the files, and later found that some (though not all) of the CAD files were subject to and in violation of the Arms Export Control Act’s (AECA’s) implementing regulations, the International Traffic in Arms Regulations. The AECA authorizes the President to control the importation and exportation of defense articles in “furtherance of world peace and the security of foreign policy of the United States.”

Defense Distributed filed a lawsuit in District Court in Texas, challenging “the federal government’s power to regulate its publication of the CAD files on the internet.” In April 2018, the government moved to dismiss the claims, arguing that “3D-printed weapons posed unique threats to world peace, national security, and the foreign policy of the United States” and therefore are subject to regulation under the AECA. Later that month, however the parties reached a settlement. The Department of State “abandon[ed] its prior regulatory and litigation positions” and agreed (1) to temporarily modify the United States Munitions List (USML) so as to allow the immediate distribution of the CAD files, and (2) issue a letter authorizing the on-line publication of certain CAD data files.

Following publication of the temporary modification of the USML, eight states and the District of Columbia filed suit in the Western District of Washington and sought a summary determination that the Department of State violated the Administrative Procedures Act (APA) in reaching the settlement. The APA provides that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law . . . [or] without observance of procedure required by law (emphasis added).

The District Court in this suit first found that Department of State’s action was “without observance of procedure required by law.” Specifically, the agency “failed to give thirty days’ notice to the Congressional foreign relations committees specified in 22 U.S.C. § 2778(f)(1)” when it modified the USML and issued the letter.

Secondly, the court held that the Department of State’s action was “arbitrary and capricious” in two respects. First, it failed to consider aspects of the problem that Congress mandated the agency to take into account. Specifically, despite the fact that Congress “directed the agency to consider how the proliferation of weaponry and related technical data would impact world peace, national security, and foreign policy” the Department of State considered only “whether restricting foreign access would provide the United States with a military or intelligence advantage (emphasis added).” Secondly, the Department of State did not provide a reasoned explanation for its abandonment of the conclusion that the CAD files posed a threat to national security (a conclusion that triggered the original Texas suit).

The temporary modification and letter were therefore held to be unlawful and were vacated.

What’s in a name? The Evolution of the Term “Gun”

The 1828 edition of the American Dictionary of the English Language (which Justice Scalia cited in District of Columbia v. Heller when he defined “arms,” “keep,” “carry,” and “militia”) defined “gun” as “[a]n instrument consisting of a barrel or tube of iron or other metal fixed in a stock, from which balls, shot, or other deadly weapons are discharged by the explosion of gunpowder. The larger species of guns are called cannon; and the small species are called muskets, carbines, fowling pieces, &c. But one species of fire-arms, the pistol, is never called a gun.”

The Repository of Historical Gun Laws suggests that the italicized portion of this definition was widely accepted throughout the 19th century and into the early 20th century – laws from Connecticut (1835), San Francisco (1849), Chicago (1873), New Haven (CT) (1881), Massachusetts (1882), Rhode Island (1883),  Michigan (1883), New Jersey (1885), St. Louis (1887), Utah (1905), North Carolina (1913), and South Carolina (1923) all differentiate between guns and pistols.

Why does this matter? Statutes that only prohibited guns during this time period may have implicitly included an exception for pistols. Several such laws appear on the Repository, and while they may merely be examples of oversight or poor draftsmanship, there are signs that the omission was intentional. For instance, there is consistency in the use of “gun” in isolation: nearly all of the laws that mention guns but not pistols address hunting. Perhaps in such cases though it was unlawful to carry guns, it was lawful to carry pistols as they were not hunting weapons. Furthermore, several states that enacted laws only addressing guns enacted laws addressing both guns and pistols in the same year. In 1863, Delaware enacted a hunting law stating that “any gun . . . used with the consent or knowledge of the owner thereof, shall be forfeited and may be seized, condemned and sold as hereinafter provided.” That same year, Delaware enacted another law prohibiting specified persons from possessing “a gun, pistol, sword or any other warlike instrument.” Similarly, in 1880, Georgia enacted a hunting law stating that it was “unlawful for any person or persons to hunt with a gun by fire-light.” Also that same year, Georgia enacted another law that addressed “any person who shall intentionally point or aim a gun or pistol.” Similarly, New Jersey enacted a statute in 1901 that used the terms firearms and guns in separate clauses of the same sentence. Perhaps this is an example of colloquialism slipping through; however, this statute, like the others, also used the term “gun” in relation to hunting.

The New Jersey statute brings up another question. Where does the term “firearm” fit into all of this? The Repository suggests that at the very least, a pistol, though not always considered a gun, was regarded as a firearm. A statute from 1885 out of New York, for example, addressed the carrying of “any pistol or other firearms of any kind.” But was a gun a type of firearm? The answer to that question is less clear.

The syntax of several laws indicates that a gun was regarded as a type of firearm. When pistols, guns, and firearms are listed together on the Repository, the most common phrasing is “gun, pistol or other firearm.” You can see this with minimal variation in New Jersey (1885), Fresno (CA) (1896), Utah (1905), North Carolina (1913), and South Carolina (1923). Now, admittedly, that construction is ambiguous. It could be that the term “firearm” applies only to the term “pistol.” If that is true, then the term “gun” presumably refers to a separate category of weaponry. However, another interpretation is that “other firearms” applies to both “gun” and “pistol.” Laws out of Georgia (1847) and Arizona (1907) support this theory, as both read “gun or other firearm” (with slight grammatical differences).

The same dictionary that launched this discussion, however, supports the argument that the terms gun and firearm referred to distinct, though overlapping, types of weapons. The American Dictionary of the English Language from 1828 defines “firearm” as “[a]rms or weapons which expel their charge by the combustion of powder, as pistols, muskets, &c.” Though it expressly includes pistols, the definition also does not describe the same range of weaponry as the definition of “gun.” While the term gun encompasses canons as well as smaller species of guns such as muskets, the definition of “firearm” only includes examples weapons that could be carried. The definition of “firearm” does not say that the examples are comprehensive, however the examples do indicate a difference between the terms. As does the fact that neither entry refers to the other.

Regardless of whether guns were once considered firearms, at least one thing is clear: the definition of “gun” has evolved. Present-day dictionaries, such as the Oxford Dictionary, no longer exclude pistols from the definition of “gun.” Some do, however, limit the definition of “firearm” largely to weapons that are “small and portable, [such] as a pistol, rifle, shotgun, or musket.” Such definitions are consistent with the analysis of the 1828 definition of “firearm” above. Furthermore, if guns once were considered a subgroup within the category of firearms, then at some point it seems the roles reversed: The Oxford American Dictionary and Thesaurus (Second Edition, 2003), for instance, defines a firearm as “a gun, especially a pistol or rifle.”

While present-day dictionaries may offer some clarity, many questions remain. Why did the definition of “gun” initially exclude pistols? Why did it change, and when did it change? If this analysis is correct, how might it impact the way we analyze laws from the 18th and early 19th century?

[Ed. Note: This post about gun laws in the Center’s Repository of Historical Gun Laws is written by Center research assistant Catie Carberry. This post, like the Repository, is exemplary and not exhaustive.]

Minors and Firearms: A Divided Nation

In my last blog series, I discussed laws currently in the Repository of Historical Gun Laws that relate to the category “Felons, Foreigners and Others Deemed Dangerous By the State.”

I have begun wading into a new category on the Repository over the past few weeks: “Possession By, Use of, and Sales to Minors.” Recently, I organized these laws into three groups: (1) laws that address all firearms, (2) laws that address concealable weapons or weapons worn concealed, and (3) laws that address only pistols and revolvers. I translated these groups onto a map, and what emerged was a hard line across the country, dividing the map into the North and the South.

According to the Repository, northern states tended to enact laws falling in the first group—those that limited minors’ access to all firearms. For instance, from 1873 to 1912, Chicago (1873),  New Jersey (1885), New York (1885),  Nebraska (1895), and Vermont (1912) forbade the sale and/or giving of all firearms to minors of various ages, among other prohibitions (New York had an exception for those with the consent of a police magistrate, and Vermont had an exception for parents as well as instructors). Similarly, New Haven (CT) (1881), Massachusetts (1882), and Rhode Island (1883) outlawed the sale of any “gun, pistol, or other mechanical contrivance arranged for the explosion of [any cartridge or fixed ammunition of which fulminate is a component part]” to minors under fifteen and sixteen without a parent’s consent (later St. Louis (1887) enacted a nearly identical law). Michigan (1883) forbade people from selling, giving, or furnishing “any cartridge of any form or material, or any pistol, gun, or other mechanical contrivance, specially arranged or designated for the explosion of the same” to children under thirteen, and Pennsylvania (1881) outlawed the sale of canons, pistols, revolvers, and any other such deadly weapons to minors under sixteen.

Meanwhile, according to the Repository, southern states tended to pass laws in groups two and three—limiting minors’ access either to weapons capable of being concealed or pistols specifically.  Kentucky (exception for parent) (1860), Mississippi (1878), and Louisiana (1890) forbade people from giving or selling weapons capable of being concealed to minors of various ages. Alabama (1856), Lexington (Va) (1869), Georgia (1876), North Carolina (1893), and Texas (1897) outlawed giving, selling, lending, and/or furnishing minors of various ages with a pistol (with exceptions not relevant here).  West Virginia (1882) similarly forbade selling to or furnishing a person under the age of twenty-one with a pistol, in addition to forbidding the sale of a “dirk, bowie knife, razor, slung shot, billy, metallic or other false knuckles, or any other dangerous or deadly weapon of like kind or character.”

The Repository does include some exceptions to this divide. In the North, for instance, Idaho (1909) enacted a law that restricted the sale of only concealable weapons to minors. Notably, however, Idaho (1888) already restricted the carrying of all deadly weapons, including firearms, in cities, towns, and villages. As such, minors’ access to all firearms was possibly already somewhat limited. The South also had at least one exception: in 1913 North Carolina enacted a law that stated that parents could not permit children under twelve to possess any firearm.

According to the Repository, areas that are along the divide between the North and the South are a bit mixed in what they forbid.  Fresno (CA) (1896) and Utah (1905) restricted the sale of or giving of all firearms to minors of various ages. On the other hand, Nevada (1881) prohibited minors from carrying only concealed weapons and Indiana (1875) forbade the sale of only concealed weapons to minors.

The Repository is not comprehensive, so the question remains: is there a divide, or are we missing relevant laws? If there is a divide, why did the divide exist? Does it represent a divergence in philosophy on gun regulation? Or is the divide coincidental, and the northern laws represent a temporal shift rather than a geographic one?

[Ed. Note: This post about gun laws in the Center’s Repository of Historical Gun Laws is written by Center research assistant Catie Carberry. This post, like the Repository, is exemplary and not exhaustive.]

The Origin of Toy Guns in America

In The Gunning of America, Pamela Haag challenged the idea that “guns are part of the American identity,” and argued that in the United States, “the gun culture was forged in the image of commerce. . . it was etched strongly by the character, ambition, and will of gun capitalists rather than by diplomats, politicians, generals, and statesmen.”

I have found some foundation for that argument in the realm of toy gun laws on the Repository of Historical Gun Laws. Before continuing, it is worth noting what the term “toy gun” refers to in the nineteenth and early twentieth century context. An Ohio statute from 1883 defined toy pistols as “pistol[s] manufactured out of any metallic or hard substance.” According to a Pennsylvania statute from 1883, toy (or imitation guns) were “arranged as to be capable of being loaded with gunpowder or other explosive substance, cartridges, shot, slugs or balls and being exploded, fired off and discharged.” These definitions, which could just as easily define guns, suggest that states initially struggled to differentiate between toy guns and real guns. Despite these ambiguities, we can at the very least infer that the toy firearms referred to in these laws are far more sophisticated than the plastic gun you might be imagining. In fact, articles that discuss toy arms from the 1800s include in their discussion cap guns and BB guns.

I began researching toy guns with the hope that there would be a connection to the current debate on 3D printing firearms (see here and here), such as a lack of regulation and traceability. Unfortunately, that connection is not apparent, at least not at the moment. What I have seen instead is a more general reaction to toy guns as a mechanism for causing harm distinct from other firearms. This was in part because toy guns were marketed for children, as lamented by the New York Times in 1875 and the Baltimore Sun in 1881. Considering this fear, it is unsurprising that there are many laws throughout the late 1800s and early 1900s, including out of Ohio (1883), Kansas (1883), New Hampshire (1883), Pennsylvania (1883), Washington (1883), Iowa (1884), New Jersey (1885), New Orleans (1893), and Virginia (1903), that limited the sale and possession of toy guns and pistols to minors.  What is surprising, though, is that there were also many toy firearms laws that targeted adults, including legislation out of Baltimore (1881), Wisconsin (1882), Maine (1883), Utah (1884), Indiana (1885), and Arkansas (1909). Wisconsin’s statute is pretty representative of these laws, and it made it “unlawful for any person to sell or use, or have in his possession, for the purpose of exposing for sale or use, any toy pistol, toy revolver, or other toy fire-arm.” These states went beyond keeping toy arms out of the hands of children, which suggests that toy firearms posed a risk in addition to being attractive to children. And notably, some of these states, such as Mississippi (1892) and Tennessee (1895), had a constitutionally protected right to arms (see here and here).

Now to return to Haag. According to CNN in an article from 2003, modern toy guns, beginning with the cap gun, were invented following the Civil War and they were produced by the same factories that produced standard firearms. Given these facts, Collectors Weekly, an online resource that sells antique toy guns, claims that modern toy guns were produced in an effort by gun factories to stay in business after demand dropped at the conclusion of the Civil War. Others have similarly made this claim, and CNN insinuates as much (“[T]he modern history begins with the cap gun, invented by shotgun manufacturers who retrofitted their factories in the settling smoke of the Civil War”).

If modern toy firearms were in fact introduced to keep gun factories in business, Haag’s claim that gun culture was “etched strongly by the character, ambition, and will of gun capitalists” rings true, at least in relation to toy guns.  According to the Repository, “diplomats, politicians, generals, and statesmen” did not begin to regulate toy guns and thereby make their mark until the 1880s.  As such, toy gun culture seems to have been “forged in the image of commerce.”

At the very least, the Repository suggests that regulations of toy arms began much earlier than other sources suggest. Several sources, such as the Roanoke Times and The Cute and the Cool: Wondrous Innocence and Modern American Children’s Culture, cite Rose Simone’s toy gun burning in Chicago in 1935 as the first example of resistance to toy guns. The Washington Post (2014) similarly describes the early 1900s “the golden years” for toy guns, and suggests that now “[t]hings have changed in the toy gun world . . . [because] attitudes about parenting and children and play have shifted markedly.” The Repository suggests that attitudes have not changed so much as they have reverted back to the old normal, where strict regulation of toy firearms was commonplace.

Yet the Repository leaves many questions unanswered. Why did states strictly regulate toy firearms in the late 1800s? In particular, why did some states seemingly regulate toy firearms more rigorously than they did real firearms? Was it because of a risk that no longer applies, such as a hazardous component part? Or were they regulated for the same reasons they are now? And finally, the age-old question remains: will you in fact shoot your eye out? The world may never know.

[Ed. Note: This post about gun laws in the Center’s Repository of Historical Gun Laws is written by Center research assistant Catie Carberry. This post, like the Repository, is exemplary and not exhaustive.]

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

[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?

Miniseries, Part II – Disarmament of those Disaffected to the Cause of America

[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.]

Who was disarmed at the time of the founding?

As mentioned in the last post in this series, there are currently several laws in the Repository that prohibited or restricted the sale of guns to Native Americans and nonresidents around the time of the founding. Yet these laws did not disarm Native Americans or nonresidents, and in fact implicitly acknowledged that Native Americans had arms as the laws forbade colonists from repairing them.

More closely resembling actual disarmament, there are laws that authorize confiscation of the weapons on the person of Native Americans if they went armed into New Netherland or passed armed through the Colony of Rhode Island without a “ticket” for bearing arms. Yet these laws did not ban violators from repurchasing firearms or disallow them from keeping weapons at home or carrying them elsewhere.

Aside from those laws, two other laws in the Repository that disarmed people at the time of the founding came out of Pennsylvania, the first in 1776 and the second in 1779. The first law disarmed “nonassociators.” The second disarmed those who refused to take an oath of loyalty or allegiance to any state.

The second law spurred a research expedition of sorts over here at the Center, during which I found a handful of laws from other states that similarly disarmed military aged men who refused to take an oath of loyalty. These laws came in response to a recommendation by the Continental Congress at the dawn of the Revolutionary War, and they bear a striking resemblance to the 1689 English law which forbade Catholics from possessing arms (beyond those needed for protection of house and person) if they refused to tender a declaration of loyalty.

Pennsylvania created an oath requirement in 1777. By its terms it disarmed those who refused to take the oath of loyalty and barred them from holding any office in the state or serving on juries (among other civic roles). Yet while it disarmed those refusing or neglecting to take the oath, the statute did not state that such persons could not repurchase arms. The statute was amended in 1778, however, and the amended statute forbade those refusing to take the oath from “carry[ing] any arms about his person or keep[ing] any arms or ammunition in his house or elsewhere” on pain of forfeiture. Notably, Pennsylvania’s constitution at the time protected an individual arms right.

Massachusetts similarly passed a law in 1776 that required “every Male Person above sixteen Years of Age” to take an oath of loyalty, and disarmed those who refused of “all such arms. . . and warlike implements, as by the strictest search can be found in his possession or belonging to him.” Yet the law included at least one potentially important exception: Quakers’ religious preferences were accommodated, and they were exempted from the standard oath. As with Pennsylvania’s law in 1777, this law did not clearly state that those disarmed were precluded from purchasing new arms.

Massachusetts enacted another law after Shay’s Rebellion which allowed those who had taken up arms against the state to obtain a pardon. Such persons had to swear allegiance to the state and deliver their arms to a Justice of the Peace. For the span of three years they were also required to keep the peace, and, as with the 1777 Pennsylvania law, they were disqualified from serving as jurors or holding office in the state (among other restrictions).

As with the other person-based regulations, these laws also lead to more questions: Is there any significance to the fact that Massachusetts included a religious exemption? Are these laws a precursor to the felony gun laws? Or are they just the product of their time?

Miniseries, Part I – A Brief Overview of Laws Addressing Nonresidents and Aliens

[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.]

Are laws banning aliens from keeping guns a “post-World War I phenomenon?”

There are currently four laws in the Repository that address nonresidents before the Revolutionary War, and none explicitly bar possession. The first is from 1633 in Massachusetts. It barred all persons from selling or giving guns, gunpowder, bullets, shot, or lead “to any Indian whatsoever, or to any person inhabiting out of this jurisdiction.” The other three laws, which came out of Connecticut, Pennsylvania, and New York, banned the sale of the same without a license.

The last of these laws, from New York, was enacted in 1680. As of right now, another law concerning nonresidents or aliens does not appear on the Repository until 1899.

That law begins a flurry of regulations concerning aliens on the Repository, a flurry which suggests increasing regulation over time. The laws that immediately follow, such as those out of New Jersey in 1902, Pennsylvania in 1903, and Utah in 1905, required aliens and nonresidents to purchase a hunting license before hunting with a gun. A few years later, some states enacted laws that required aliens to obtain a general firearm license. Unlike the hunting licenses, which only seem to address using guns while hunting, these laws address the general carrying and possession of firearms.

Some of them, including one from Montana in 1913 (which notably had an exception for aliens who owned more than 160 acres of land) and one from Wyoming in 1915, required only the payment of money for a license. Others required aliens to take a step in addition to payment of a fee. There are currently two such fee-plus laws on the Repository, and they both concerned persons who were not United States citizens and who had not declared their intention to become one. The first one in the Repository is from Washington in 1911, and it required such persons to obtain a certificate from their consul stating that they are a “responsible person.” The second was enacted in 1917 in New Hampshire and it required such persons to state “the purposes for which the possession of the firearm or firearms is desired.”

Around the same time, states across the country enacted statutes banning possession of at least some guns by aliens. These are the first statutes in the Repository that unambiguously ban possession of firearms by aliens. Interestingly, there is one law that seemingly swept across the country over fourteen years—from 1909 to 1923—with very little variation. It read as follows:

[I]t shall be unlawful for any unnaturalized foreign born resident to hunt for or capture or kill, in this Commonwealth, any wild bird or animal, either game or otherwise, of any description excepting in defense of person or property; and to that end it shall be unlawful for any unnaturalized foreign born resident, within this Commonwealth, to either own or be possessed of a shotgun or rifle of any make.

According to the laws on the Repository, Pennsylvania was the first to enact this law in 1909. New Jersey, North Dakota, and New Mexico followed with vastly similar statutes within the span of twelve years. Colorado, Michigan, and Minnesota also enacted a modified version of the statute, with the key change that “unnaturalized foreign-born residents” were prohibited from possessing firearms of any kind, not just shotguns and rifles. New York also enacted a modified version in 1923 which prohibited possession of a rifle or shotgun by an alien without a “special license.”

At the tail end of that statute’s sweep across the country, at least based on the Repository, another statute swept through multiple states (North Dakota, California, Nevada and Oregon) within the following decade. That law prohibited the possession of weapons capable of being concealed (e.g., pistols and revolvers) by unnaturalized foreign-born persons.

These observations raise a number of questions: Was there a gap in laws addressing aliens between the Revolutionary War and the late nineteenth century? If so, why, and why the sudden flurry of laws at the end of the nineteenth century and into the early twentieth century? Is it the result of the lead up to and the aftermath of World War I? The invention of new modes of transit?  Why the sweep in the enactment of nearly identical laws across the country? Where did they begin?