Constructive “Keeping” and the Second Amendment

Eugene Volokh recently linked to an interesting case involving the Second Amendment rights of people who share a home with someone barred from possessing guns. The case’s result seems to turn on the fact that the prosecution simply failed to show that the defendant intentionally helped her boyfriend (a felon) possess her gun. But it also raises interesting questions about what counts as “keeping” and “bearing” for the purposes of the Second Amendment, particularly as those concepts relate to criminal liability for constructive possession.

Inasmuch as debates about the Second Amendment concern its text, they tend to focus on terms like “well regulated Militia,” “the people,” “the right,” and “Arms,” with the definitions of “keep” and “bear” essentially following along with one’s preferred reading of the Amendment’s purpose. If the Amendment is about protecting militias from disarmament, then “keep and bear Arms” is a unitary phrase with a military meaning. If it’s about an “individual” right to self-defense (or something else), then “keep” and “bear” mean simply “have” or “carry,” as the Court held in Heller.

Since Heller, much attention has been given to what types of “the people” have Second Amendment rights, and what types of “Arms” they can bear. But the meanings of “keep” and “bear”–even now that they’ve been redefined as “have” or “carry”–also raise complicated questions, which don’t seem to have attracted the same amount of attention. What amount of control must I exert over a gun in order to assert that I am “keeping” it for Second Amendment purposes? Presumably it doesn’t have to be on my person or even in my immediate control, or else keeping and bearing would mean the same thing, and I wouldn’t have a Second Amendment right to store my guns in an attic or a shed.

Is constitutional “keeping” (i.e, “having”) simply analogous to “possession” in criminal statutes? The concepts are certainly closely related, since a felon’s loss of the right to keep includes a loss of the right to possess. That suggests possession is at the very least a subset of keeping. And if that is so, is there some version of “constructive keeping” akin to constructive possession? Knowledge and intent to control a gun are usually treated as essential elements of constructive possession under state and federal criminal law. That makes sense, given the mental state requirements we generally have in criminal statutes. But does that necessarily mean that they are also essential elements of “keeping” for Second Amendment purposes?

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1 Response

  1. MJC says:

    This issue is likely presented by most states’ felon-in-possession prohibitions. See, e.g., A Fighting Chance for Outlaws: Strict Scrutiny of North Carolina’s Felony Firearms Act, 32 Campbell L. Rev. 333, 421 (2010) (explaining how the statute implicitly renders it illegal for a former felon’s wife to acquire a firearm herself and store it so as to be accessible in a pinch, since the husband could conceivably access it as well).