Citation

Serrano NA. Gonzaga Law Rev. 2024; 59(1): 145-203.

Copyright

(Copyright © 2024, School of Law, Gonzaga University)

DOI

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PMID

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Abstract

In its 2008 District of Columbia v. Heller decision the Supreme Court interpreted the Second Amendment for the first time in the Court's history as protecting an individual right to possess a handgun in the home for self-defense, unassociated with militia service. The word possess does not appear in the text of the Second Amendment, but the Court found its meaning in a fundamentally different word that is in the text: keep. This was a major misinterpretation, the examination of which reveals a tremendous amount about the original meaning of the Second Amendment. This Article discusses the use of keep in numerous statutes and resolutions written contemporaneously with the Amendment, including more than eighty appearances of the word in the enactments of the First Congress, which drafted the Amendment and proposed it to the states for ratification. Throughout these texts, the meaning of keep is remarkably consistent: to maintain or hold in fulfillment of a duty to provide a service. The way a tavern keeper maintains a tavern as a service to patrons, a treasurer holds monies as a service to the public, and a lighthouse keeper maintains a lighthouse as a service to those at sea. The service contemplated in the Second Amendment could not be more clear: militia service. The inclusion of keep in the Second Amendment provides powerful evidence that what the Amendment granted was one's right to maintain arms in fulfillment of his duty to provide militia service, nothing more.

Language: en