[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?

This week, we’re fortunate to have a three-part series by one of the Center’s excellent summer research assistants, Catie Carberry. Catie’s posts will provide an overview of the historical gun laws in the Center’s Repository of Historical Gun Laws, the largest publicly available single-site compilation of historical regulations of firearms. The Repository is the result of more than four years of painstaking research, but makes no claim to completeness. Rather than purport to include every firearm-related law (an impossible task), it is designed to provide a broad, deep, and representative sample of the kinds of gun laws that have existed throughout English and American history.

All three posts in Catie’s series will focus on trends in laws currently in the Repository that are categorized as dealing with “Felons, Foreigners and Others Deemed Dangerous by the State.” The mini-series is not meant to be a comprehensive summary of all historical laws addressing the subject, and some of the trends may highlight areas where the Repository is missing regulations. The series is meant to provoke those questions as well as describe the laws currently in the Repository. (Some laws that Catie discusses are recent discoveries that we are in the process of uploading to the Repository.)

The first post will address laws concerning aliens and nonresidents. The second will describe laws disarming those “disaffected to the cause of America.” And the last will deal with felons and the mentally ill.

The Repository’s laws can tell us some really interesting things about trends, geographic variation, and historical understandings of firearms regulation; we hope it spurs scholars and researchers to delve deeper into these questions. Some interesting academic articles already flesh out this particular category of gun regulations well, including:

• Kevin Marshall – Why Can’t Martha Stewart Have a Gun?
• Pratheepan Gulasekaram – “The People” of the Second Amendment: Citizenship and the Right to Bear Arms
• Angela Riley – Indians and Guns

If you know of any laws that fit these categories and are not in the Repository, please let us know!