Don’t Forget the First Half of the Second Amendment

The amendment doesn’t prohibit gun regulations; it demands them.

An illustration of a just-fired rifle with text from the Second Amendment superimposed
The Atlantic; Getty

About the author: Thomas P. Crocker is a law professor at the University of South Carolina and the author of Overcoming Necessity: Emergency, Constraint, and the Meanings of American Constitutionalism.

To listen to the gun lobby, the Second Amendment provides an absolute constitutional right for an individual to own an array of armaments and ammunition free from regulation by the state. These advocates select from the amendment’s text only what supports their individual-freedom view, but they ignore entirely the imperative that precedes, the framing device of the whole thing—to protect “the security of a free State.” Read in full, the text of the amendment is not a prohibition on gun regulations but, rather, a requirement of certain regulations necessary for protecting that security and freedom.

Gun-rights activists point to the 2008 Supreme Court decision in Heller v. District of Columbia as finally establishing, some 219 years after the ratification of the Second Amendment, an individual right to possess a gun in the home, which they proclaim extends to assault rifles and sundry other weapons enabling individual bearers to inflict mass destruction of human life. In their view, the ordinary citizen is bound by a constitutional covenant to suffer the risk that others might use their military-style weapons to murder children—or churchgoers, or grocery shoppers, or concertgoers, but especially children—because it is the person, not the gun, who does the killing in the Second Amendment’s name. We the people must endure this risk, we are told, because otherwise the rights of some to “keep and bear Arms”—even against children—outweigh our collective need for safety and security. The constitutional protection of some to “keep” the weapons that they sometimes “bear” against us collectively is too important a right necessary for individual freedom to contemplate regulations that would, or even might, reduce our risk. We are told that the right to individual ownership of armaments like AR-15 platform assault weapons, with minimal or no real restraints on purchasing, is necessary for an armed populace to keep the threat of a tyrannical government at bay.

Such a popularized version of our Constitution’s meaning was in part vindicated by a conservative Supreme Court majority, whose opinion in Heller focused principally on the second half of the Second Amendment, which reads, “The right of the people to keep and bear Arms, shall not be infringed.” Assuming that the term of art “keep and bear” means the same in modern English as “possess and carry,” and that “the people” refers to particular individuals rather than a political collective, as in “We the People,” which established the Constitution in the preamble, the right would seem to be fairly clear. (Or at least as clear as the First Amendment, which provides that “Congress shall make no law … abridging the freedom of speech,” under which the Supreme Court has nonetheless repeatedly found all manner of regulations permissible—such as those prohibiting incitement to violence, true threats, and advocacy for violent overthrow of the government, and those putting reasonable time, place, and manner restrictions on speech, among many others.)

But this version of the Second Amendment ignores the first half, which reads, “A well regulated Militia, being necessary to the security of a free State.” The Supreme Court barely contemplated the text’s meaning in Heller, asking no more than whether it could be given a logical link or a purpose consistent with what it dubbed the “operative clause”—wherein the amendment, in the Court’s view, protects an individual right to possess a weapon. The first half of the Second Amendment is at times also anachronistically associated with the question of whether the right to possess a weapon is tied to service in a “well regulated Militia”—a view the Heller majority rejected. Missing from this reading, however, is any consideration of the constitutional significance of what is necessary to maintain the “security of a free State.” What does this security entail? Are Americans secure in a free state when they live in fear of the next violent act that might be perpetrated by the bearer of semiautomatic weapons? Are Americans secure in a free state when they are told that more resources should be spent on arming teachers, or training students to duck and cover and keep silent, as if in a new cold war, only this time the enemy is ourselves?

The gun lobby argues that the political, psychological, and emotional attachment to the ready availability of weapons for some is a value too precious to contemplate rethinking our collective approach to gun regulation. Any regulation that might lead to imposing far more restrictive licensing and background checks, or to limiting the availability of particular kinds of weapons, would be too costly to their selective understanding of constitutional freedoms. According to the gun lobby, individuals engaged in their own fantasy of the heroic citizen equipped to do battle against tyrannical government agents would suffer incalculable collective costs were Americans to restrict their access to weapons. If the choice were the lives of children or the political imagination of a vocal group of armament activists, whose costs should matter more? The inconvenience of some or the lives of others?

The Second Amendment provides an answer. The “security of a free State” matters. Our security is a constitutional value, one that outweighs absolutist gun-rights claims by NRA lobbyists, or Oath Keepers and other insurrectionist groups who hold their access to weapons dear for use in an imagined anti-tyranny quest. Meanwhile, the rest of us suffer the costs of the actual tyranny that living in a state of fear of mass gun violence creates.

Franklin D. Roosevelt’s 1941 “Four Freedoms” speech placed freedom from fear as one of four essential human freedoms. Translated to our modern gun crisis, this freedom can be realized only when individuals no longer have easy legal access to armaments that put them “in a position to commit an act of [mass] physical aggression against any neighbor.” Children today do not have this freedom from fear. Just to live in society and go to school, they must endure regular active-shooter drills, because the gun lobby has opposed any regulation that would keep weapons out of the hands of those whose activities remain legal up until the exact moment when they start shooting children and teachers. Proposals to make schools more like fortresses only add to the costs children bear rather than addressing the root constitutional problem—that insufficient regulation of guns impairs the liberties of all.

Protecting our freedom from fear does not mean that the government has complete authority to ban guns. To emphasize the amendment’s protections for security is not to abandon liberty. Rather, it is to recognize how excessive emphasis on the liberties of gun advocates undermines the many liberties of everyone else who seeks to live securely in a “free state.” The Second Amendment preserves a free state, not simply a security state.

When we Americans next hear that the Second Amendment protects a right against more effective regulation of weapons capable of imposing death on our neighbors, we should insist in response that the Second Amendment requires the opposite. It empowers a free people to regulate weapons as necessary to maintain their security and to protect their freedoms from fear and violence. We can be free, but only if we regulate guns—just as the Second Amendment tells us.