[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.]

Felons

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?

In the past week, the Supreme Court issued two decisions likely to have a major impact on gun prosecutions: Rehaif v. United States, in which the Court tossed out an immigrant’s conviction for unlawful possession of a firearm, and United States v. Davis, in which the Court tossed out a pair of convictions for possessing a firearm during a crime of violence. Justice Kavanaugh chronicled a list of crimes potentially imperiled by Davis. Justice Gorsuch dismissed the relevance of this “rogue’s gallery of offenses.” How should we understand these decisions?

This post and the next one will explore that question. At the outset, it’s worth noting some things the two decisions have in common:

• Both majorities include justices typically described as conservative (indeed, Justice Gorsuch wrote Davis).
• Both majorities also include all the justices typically described as liberal, even though the decisions narrow the range of prosecutorial tools to enforce firearms regulations.
• And in both cases, the dissents—which were each longer than the corresponding majority opinions—decried the impact on law enforcement and frustration of criminal prosecutions of gun crimes. (Notice how the dissents described the relevant laws as powerful crime-fighting tools. Justice Alito in Rehaif: “[T]oday’s decision is no minor matter. And §922(g) is no minor provision. It probably does more to combat gun violence than any other federal law.” Justice Kavanaugh in Davis: “Many factors have contributed to the decline of violent crime in America. But one cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violent crimes with firearms.”)

Each case alone is major; together they’re a huge deal. Rehaif came first, decided on June 21 by a 7-2 majority. (Only Justices Alito and Thomas dissented). Hamid Rehaif came to college in the United States on a student visa. But he effectively failed out of school, which meant he could no longer remain legally in the country. Rehaif, however, not only remained, but also visited a shooting range in Florida where he bought a box of ammo and rented a gun. That’s a problem because 18 U.S.C. § 922(g)(5) makes it unlawful for an alien who is illegally or unlawfully present in the United States to possess a gun or ammunition. Rehaif was charged with violating § 922(g) and 18 U.S.C. § 924(a)(2), the latter of which punishes anyone who “knowingly” violates the former with up to 10 years’ imprisonment. Rehaif argued that the statute required the government to prove he knew his unlawful status; the lower courts rejected this claim.

But the Supreme Court reversed. Writing for the majority, Justice Breyer applied the presumption that a statute’s mens rea requirement flows through to each of its elements.

With some here-irrelevant omissions, §922(g) makes possession of a firearm or ammunition unlawful when the following elements are satisfied: (1) a status element (in this case, “being an alien . . . illegally or unlawfully in the United States”); (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “firearm or ammunition”).

Because jurisdictional elements are generally excluded from scienter requirements, that left the substantive elements that define a violation of 922(g). An alien cannot “knowingly” violate the statute unless he knows his status. As the Court noted, “[a]ssuming compliance with ordinary licensing requirements, the possession of a gun can be entirely innocent. It is therefore the defendant’s status, and not his conduct alone, that makes the difference.”

In dissent, Justice Alito decried the majority’s dismissal of “an interpretation that has been adopted by every single Court of Appeals to address the question.” He suggested that “[t]oday’s decision will make it significantly harder to convict persons falling into some of” the 922(g) categories, such as those “adjudicated as . . . mental defective,” or those under certain types of domestic violence restraining orders, or those convicted of misdemeanor crimes of domestic violence. In his view, the scienter requirement plainly covers only the conduct element, and leaves the status element as an issue for the courts to decide as a matter of law.

The Court left Justice Alito’s worries about other statuses for another day, but nonetheless suggested some situations in which its narrow reading of 922(g) would change the outcome: without the scienter requirement the law “might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘punishable by imprisonment for a term exceeding one year.’”  And with that, Justice Alito is likely correct that Rehaif may open a wide door to post-conviction petitions from offenders convicted of 922(g) offenses. Time will tell, but when combined with Davis, the decision just might be a major change in criminal enforcement of gun regulations.

[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?

As this blog highlighted last week, the Seventh Circuit in Kanter v. Barr rejected a fraudster’s attempt to have the court declare 18 U.S.C. § 922(g)(1), the felon dispossession statute, unconstitutional as applied to him. It did the same thing last Thursday in Hatfield v. Barr. But did it also upend its normal inquiry?

Like Ricky Kanter, Larry Hatfield committed fraud to get government money. Unlike Kanter, Hatfield served no prison time and took less than $2,000, compared to more than $375,000 for Kanter. But the Seventh Circuit panel (Easterbook, Flaum, Sykes) unanimously concluded that Kanter controlled the outcome and foreclosed Hatfield’s claim. That’s where the agreement stopped. Judge Easterbook, writing for the majority, dispensed with the two-step inquiry Kanter, and the Seventh Circuit more broadly, typically undertakes. Instead, he flatly rejected the notion that one who served no prison time ought to enjoy any kind of presumption that his crime or his circumstances warranted individualized review:

We now hold that §922(g)(1) may be applied to a felon convicted of fraud, whose maximum sentence exceeded a year, even if the actual punishment was less. Heller and McDonald treat felon‐dispossession statutes as valid; the Justices did not make anything of how much time any given felon spent in prison.

For that reason, Hatfield bore the burden of proving that he should be exempt from these laws. As Judge Easterbook put it, “Lawyers love to play games with burden‐shifting, but Hatfield’s effort to avoid the subject is unavailing. He is the plaintiff, and plaintiffs bear the burden of production and the risk of non‐persuasion.”

According to Judge Sykes, writing in a partial concurrence, that approach is wrong.

Kanter assumed that nonviolent felons are within the scope of the Second Amendment’s protections and applied intermediate scrutiny, requiring the government to demonstrate that disarming someone like Rickey Kanter—a person convicted of a nonviolent fraud felony—is substantially related to an important public-safety interest.

She would have simply concluded that Kanter controlled the outcome without “[b]reaking new doctrinal ground.”

Despite the virtue vs. dangerousness dispute discussed in Kanter (and expounded upon by Judge Barrett in dissent), there’s no hint of that debate in Hatfield. Judge Easterbook suggests that Heller made felon dispossession laws constitutional full stop. Barring any empirical evidence showing a particular person, or one who committed a particular crime, is “to a constitutionally dispositive degree less dangerous than other felons, [he] must accept that the Supreme Court’s norm applies to him.”

The Supreme Court in January agreed to hear its first Second Amendment challenge after a decade of (relative) silence. But other than New York State Rifle & Pistol Association v. City of New York (NYSRPA), there are—by my count—five other pending petitions asking the Court to review lower courts’ Second Amendment (or related firearms) rulings, with more likely to join in the coming months. Here are the pending petitions and where they stand:

It’s possible that the Supreme Court is holding some or all of these petitions to assess how NYSRPA could affect them. Or, it may be holding them in case NYRSPA goes away altogether. If granted, any of these cases has the potential to result in monumental changes to Second Amendment law.

As well as the currently pending petitions, there are several cases in which the parties may (and in some case have said they will) seek Supreme Court review in the coming months. For example, in the case arising from the Sandy Hook massacre, Remington Arms has indicated that it will seek Supreme Court review. Its petition for certiorari in that case—Remington Arms v. Soto—is currently due August 1. That case is not a Second Amendment challenge, but about whether the Protection for Lawful Commerce in Arms Act (PLCAA) bars the plaintiffs’ claims against Remington. There are also several as-applied challenges to firearm prohibitions for felons that appear ready for Supreme Court review, such as Kanter v. Barr and Medina v. Whitaker , though it remains to be seen whether the parties in these case will ultimately seek review. Then there are other percolating challenges, like the one to Massachusetts’s ban on assault weapons and high-capacity magazines in Worman v. Healy, that may also present opportunities for the Supreme Court to weigh in. Just like batch of pending cases, these too have the potential to effect radical change in Second Amendment (or related) doctrine.

In Kanter v. Barr, decided this March, the Seventh Circuit rejected a non-violent felon’s as-applied challenge to 18 U.S.C. § 922(g)(1), which prohibits those convicted of (nearly) all felony offenses from possessing firearms for life. The majority decision, and the dissent, highlight a fraught debate about the historical justification undergirding these types of prohibitions. All circuits have rejected facial challenges to the federal law, but there is some division about whether and how as-applied challenges can succeed:

In the Kanter case, Rickey Kanter previously owned a business that made therapeutic shoes for diabetics and individuals with serious foot disease. He lied about the physical specifications of the shoes, claiming they met federal requirements when they did not, and was later convicted of mail fraud for bilking Medicare out of hundreds of thousands of dollars. That conviction rendered him incapable of owning a gun. He argued that because his conviction was not for a crime of violence, applying the firearm prohibition to him violated his Second Amendment rights.

The Third Circuit’s  2016 en banc ruling in Binderup—which produced no majority opinion—demonstrated the disagreement about the rationale for felon dispossession laws. That debate, which Kanter reignites, is whether the prohibition is justified by the individual’s perceived (1) lack of virtue or (2) propensity for violence. The rationale matters because it typically informs the first step of how courts consider Second Amendment challenges: does the conduct or person at issue fall within the scope of the Second Amendment’s protection? If virtue is the touchstone, then courts are more likely to consider felons as a class unprotected by the Amendment. But, as the Seventh Circuit majority (Judges Flaum and Ripple) says, “[i]f the founders were really just concerned about dangerousness, not a lack of virtue, nonviolent felons like Kanter arguably fall within the scope of the Second Amendment’s protections.” The Seventh Circuit majority, not wanting to wade into the debate over whether the felon prohibition was justified by considerations of virtue vs. danger, instead assumed that Kanter fell within the Second Amendment’s protection and moved to step two of the analysis: whether the law is appropriately tailored to an important enough government interest. The court ultimately upheld the law under intermediate scrutiny.

In a lengthy dissent, Judge Amy Coney Barrett sought to clarify a “conceptual point” about the coverage question. Here, she quibbled not so much with the majority (which had assumed coverage) as with approaches by other judges, including those in Binderup, who see the virtue vs. danger question as a threshold question of whether the Second Amendment even covers a particular person.  She highlights the two views:

Some maintain that there are certain groups of people—for example, violent felons—who fall entirely outside the Second Amendment’s scope. . . . Others maintain that all people have the right to keep and bear arms but that history and tradition support Congress’s power to strip certain groups of that right.

In other words, the conceptual question is whether a certain class of persons simply has no Second Amendment rights at all or has such rights but can be permissibly stripped of them. I think of this distinction as similar to that between void vs. voidable contracts. Judge Barrett opts for the voidable view; a felon is protected by the Second Amendment unless and until the legislature strips her of that right. Or, as she puts it, “a person convicted of a qualifying crime does not automatically lose his right to keep and bear arms but instead becomes eligible to lose it.” On her view, then, there’s no first step when dealing with persons. They all fall within the protection of the Second Amendment and the only question is whether the government may permissibly take away their right. After surveying the historical arguments for doing so, Judge Barrett concludes that the government can only permissibly take away the rights of those felons who are dangerous. Because the government provided no evidence that Kanter was himself dangerous, or that mail fraudsters as a class are dangerous, the application of § 922(g)(1) to him violated the Second Amendment.

With the Supreme Court showing perhaps slightly more willingness to entertain Second Amendment challenges, the Seventh Circuit’s decision might not be the last word on whether Rickey Kanter can own a gun. (See also Kevin Marshall’s interesting piece, “Why Can’t Martha Stewart Have a Gun?”) Indeed, if the Supreme Court adopts an altogether new framework in the upcoming New York State Rifle & Pistol Association case, then the rationale question that the Kanter majority sidesteps, and the dissent takes on, may make all the difference in the world.