2nd Amendment DOESN’T Protect AR’s?! – The Legal Brief
Articles,  Blog

2nd Amendment DOESN’T Protect AR’s?! – The Legal Brief

Welcome back to The Legal Brief, the show
where we CRUSH the various legal myths and misinformation surrounding various areas of
the gun world. I’m your host Adam Kraut and today we are
discussing the recent decision from the 4th Circuit that found America’s Rifle is not
protected by the
Second Amendment. Recently the 4th Circuit issued a very unwelcome
decision en banc in Kolbe v. Hogan which proclaimed that “assault weapons” and “large capacity”
magazines are not protected by the Second Amendment, a determination that has the gun
community up in arms. A few points of order before we talk about
the decision itself. For those that don’t know, en banc is when
the Court sits as a whole to hear a case. In this instance, it was heard before 14 judges
rather than the typical 3 judge panel. In order for a court to hear a case en banc
it can either do so on its own or a party can petition the court for a rehearing. The other point is that the Fourth Circuit
covers Maryland, West Virginia, Virginia, North Carolina and South Carolina. So if you live in a state such as Wisconsin,
Maine or Texas, this decision does not directly affect you. Kolbe challenged Maryland’s Firearm Safety
Act of 2013 (“FSA”), which bans AR-15s and other military-style rifles and shotguns
as well as detachable large capacity magazines, by contesting the constitutionality of the
law under the Second Amendment, as well as bringing a Fourteenth Amendment Due Process
and Equal Protection claim. For the purposes of our discussion, we will
only cover the Second Amendment aspect. At the District Court, the judge ruled that
the FSA was constitutional. While analyzing the Second Amendment claims,
the Court expressed doubt that “assault weapons” and “large capacity magazines”
were protected by the Second Amendment. In its decision the Court employed an intermediate
scrutiny analysis. When a court employs an intermediate scrutiny
analysis, it looks to see whether the challenged law furthers an important government interest
by means that are substantially related to that interest. In this instance, the District Court found
that Maryland’s law furthered the important interest of providing for public safety and
preventing crime and did so in a manner that substantially furthered that interest. Intermediate scrutiny does not require that
the manner in which that interest is furthered be the least burdensome. The Court looked at evidence presented by
the parties as to the capabilities of certain firearms, etc. to arrive at this conclusion. The decision is in the description if you
want to read it. Kolbe appealed to the 4th Circuit and a three
judge panel reversed the District Court’s decision. The panel found that the Second Amendment
protected the rifles and magazines that were banned by the FSA. Of equal importance, the three judge panel
found that the appropriate level of scrutiny to analyze the constitutionality of the FSA
was strict scrutiny. Again, quick lesson for those that don’t
know, under a strict scrutiny analysis, the law must further a compelling governmental
interest and must have been narrowly tailored to achieve that interest. Simply put, the law must be written in the
least restrictive means possible in order to further a compelling governmental interest. As you may have guessed, the three judge panel
kicked it back to the District Court to decide the case in accordance with the panel’s
decision, that is until the hearing en banc was granted. And before all of you give up hope in the
federal judiciary, I think you’ll appreciate this brief excerpt from the decision. “The meaning of the Constitution does not
depend on a popular vote of the circuits and it is neither improper nor imprudent for us
to disagree with the other circuits addressing this issue. We are not a rubber stamp. We require strict scrutiny here not because
it aligns with our personal policy preferences but because we believe it is compelled by
the law…” Unfortunately, what would have been a welcomed
difference in opinion between the circuit courts was overruled when the case was reheard
en banc. It was all too happy to reaffirm the District
Court’s opinion in part. However, unlike the District Court, it made
an explicit statement, that has gun owners very upset. The 4th Circuit en banc declared that “contrary
to the now-vacated decision of our prior panel — the banned assault weapons and large-capacity
magazines are not protected by the Second Amendment. That is, we are convinced that the banned
assault weapons and large-capacity magazines are among those arms that are ‘like’ ‘M-16
rifles’ — ‘weapons that are most useful in military service’ — which the Heller
Court singled out as being beyond the Second Amendment’s reach…Put simply, we have
no power to extend Second Amendment protection to the weapons of war that the Heller decision
explicitly excluded from such coverage.” It further stated that the appropriate level
of scrutiny to apply to such a challenge was intermediate scrutiny. In other words, the Court believes that the
Second Amendment does not warrant the highest level of protection when analyzing a challenge
to the constitutionality of a law it may infringe upon. Many people have been asking “how will this
affect me”? Remember at the beginning where I listed the
states the 4th Circuit covers? This decision is only binding on lower federal
courts in those states. Unfortunately, that means if a law restricting
certain types of firearms is passed in any of those states and someone brings a challenge
to the constitutionality of it under the Second Amendment, it has now opened the door for
restrictions on what firearms the Second Amendment protects. If you reside in a different state, no courts
are bound by the decision. However, they can cite to it as persuasive
authority, which is problematic, especially if other courts begin to adopt the perverted
logic employed by the 4th Circuit. When we were reviewing the script for this
episode, Jon asked me how we could fight such a terrible decision. The fact of the matter is, there isn’t really
any way to do so, short of contacting your congressional representatives. As you probably know, we have a system of
government that is designed to have checks and balances on one another. If you didn’t know that, don’t worry,
I’ve included another School House Rock episode for you to enjoy. As the judiciary is independent of the legislative
branch and not directly elected, there are only two ways that this decision will be overturned. The first is if Congress takes action. The second is if the Supreme Court decides
to hear an appeal. When a case is decided by the Court of Appeals,
either party can petition the Supreme Court to grant a writ of certiorari to hear the
case. The Supreme Court is under no obligation to
hear this case. In fact, the Court receives about 7,000 requests
to hear a case each year and only grants certiorari to about 100-150 of them. Time will tell if this is one of the cases
that makes it to the Supreme Court or not. Hopefully that gives you a better understanding
of the recent decision from the 4th Circuit. If you guys liked this episode, you know what
to do, hit that like button and share it around with your friends. Have a question you want answered on this
show, head over to The Legal Brief section on theguncollective.com. Be sure to check out my website adamkraut.com
for more information on my quest to serve YOU on the NRA Board of Directors. Don’t forget to like The Gun Collective
on Facebook, Instagram, YouTube, Full 30, Snap Chat and wherever else you can catch
us on social media. And as always thanks for watching!


  • أتابع الناصري. Keillor,Christopher

    We need to get another civil war going any website that doesn't teach that preach that at this time their anti-American as well

  • Brian Smith

    FSA = Fucking Stupid Asses. Fucking idiot libtard judges. I feel sorry for those states that have to deal with those laws.

  • blake102989

    or option number 3, exercise our 2nd amendment right and take our country from the people that are trying to make us into sheep. "Live Free Or Die, Death Is Not The Worst Of Evils"

  • Corry Smith

    American's will lose their rights to keep and bear arm's city by city, state by state if we don't unite, back each other up and stop this tyranny.

  • David Sweet

    The 2nd Bill of Rights says it all. It says bear arms not bear arms of this time. It also mentions something about shall not be infrenged. Call me crazy but that means any law state or federal is unconstitutional. It does not matter what the suppream court says they do not supperseed the constitution. That Judge should be fired or threw out on his ass. Call me crazy again but he took a oath to uphold the constitution. He has failed.

  • Buick 401

    Criminals could care less what the court or any law says. Any gun control is an attempt to confiscate weapons from the law abiding period………….They are pushing for a war they cant win and don't want!.

  • 44 Hawk

    One would think that the Heller court would have read the 1937 Texas versus Hayes decision where it stated that that as long as the military ever had a use for the weapon that it's covered under the Second Amendment. in that case they ruled against the ownership of a sawed-off shotgun stating that no evidence was presented to the court that supported that they use by our military of sawed-off shotguns. That portion of the ruling however was vacated by an appeals court ruling in 1939 this stated that there was ample evidence that the Army had used sawed-off shotguns in trench warfare in World War I and stated that the legal right to own a sawed-off shotgun does indeed exist under the Second Amendment to the United States Constitution.

  • coywc

    there is a lot you can do about it disobedience is just one of many. Impeach, replace judges an so on. If all else fails take up arms last resort only.

  • William Franks

    Us v miller. So in the courts opinion dose not support it. In miller the supreme court said a sawed of shotgun is not common to the military.

  • Richard Dupuis

    If the 2nd Amendment does not apply to the AR-15 than the First Amendment does not apply to computers or the internet. So, people can say 'We need to ban AR-15s' but they have to use a town crier to spread the word. You cannot say one amendment only applies to things made in 1776, while not applying the same criteria to everything else. The Founding Fathers could not have known there would one day be nuclear weapons, but at the same time, they could not have known that one day someone in America could talk to someone in China instantaneously in real time.

  • george10R11

    no such thing as an assult weapon unless it can walk and think by itself
    if it was an assult weapon you would have to include rocks and any other inaminate object or
    written word such as some religions that propergate attacks on others


    When are we ProGun rights and 2nd Amendment followers and the ones that took an Oath the 111% going to March on Washington, I hope before the November elections also demand they have TERM LIMITS on CONGRESS

  • Michael Dvorak

    These courts don't work for us, they work for the gun grabbing one world order/UN. The 2nd Amendment is there so we can have guns capable of defense against government troops. That means guns compatible to military weapons. This covers current military grade small arms used by our military. This means the M4 with auto capability. The semi-auto AR15 Is substandard to that.

  • John Pelham

    The Bill of rights protects the peoples rights to protect themselves with modern wepons .
    The second Amendment is just an add on.
    You can't contest the Bill of rights.

  • Ejk2969

    Does common sense law mean nothing anymore, this is just further proof of liberal judges making liberal decisions based on their ideology and not law

  • Michael Parker

    I say this to the judges on the 4th circuit dishonor on you dishonor on your ancestors the song around the cow that brought you and dishonor on your descendants

  • Bob Tyor

    The founding fathers knew what they were doing. When the 2A was written.
    The people had the better more advanced arms than the gov. This needs to be pointed out. Evan to the lawyers on our side they may not know this
    Dubble rifles, and shot guns, rifles and ,rifeld handguns and, highly relibal duling handguns, harminaca rifles.
    Were owned by the people they were the best most advanced small arms.
    This went on until bacicaly ww1.
    Look at Custer battle field. The Indians were better armed. Eave in ww1 you could buy full autos.
    This is total bs. That the 2a only aplays to sertian type of firearms.

  • Tim Morris

    You can't have a "well regulated militia" to ensure the "security of a free state" with bolt action deer rifles.

  • Ricky Mellottsr

    Yeah it does, the second amendment protects all firearms. The court is wrong!!! If you own it , the second amendment protects it !!!!!!!!!!!!!!!!!!!!

  • Doug Dawkins

    if the 2nd amendment doesn't protect AR's, it also doesn't protect federal judges and politicians who violate the U S. Constitution

  • Dave Sakievich

    I keep asking, What part of "shall not be infringed" don't they understand. Remember that the American Revolution was all fought with 'illegal weapons'. Britain had already passed gun laws disallowing the colonists the right to any arms. Flintlocks were, at that time, the most modern weapon available and ordinary people also owned their own cannons, they also had access to many, many multi-shot and automatic weapons, like a 'flintlock' that could fire up to 20 shots with 1 pull of the trigger, pistols that had up to 20 barrels for 20 shots, the list is endless. "Their swords, and every other terrible implement of the soldier, are the birthright of an American… "– Tench Coxe 1788 ('Birth Right' meaning that it is not something that the 'government' created, you were born with this Right. "The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." – Thomas Jefferson. "If gun laws in fact worked, the sponsors of this type of legislation should have no difficulty drawing upon long lists of examples of crime rates reduced by such legislation. That they cannot do so after a century and a half of trying." – Orrin Hatch “A free people Ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.” George Washington – Note: How would we be able to do this last if the 2nd Amendment did not include the Right to own and possess the same arms as the government? George Washington knew this very well as they had just over thrown their oppressive government. And lastly, the 2nd Amendment itself, if the 2nd Amendment protected Militias right to bear arms only then why does it state, "the peoples right to keep and bear arms" and not the Militias right to keep and bear arms?

  • Richard Hightower

    The Fourth Circuit acted CRIMINALLY. Their decision is unlawful and unconstitutional. The Fourth Circuit is treasonous to the American people.

  • Not A Meth Dealer

    im not American, so my opinion doesn't matter, but when I read the second amendment, It didn't come across to me that it was talking about guns or firearms, more weaponry in general, aka knives, swords, guns etc.

  • AIRBORNE Trooper

    DAM LIBERALS don't understand a brown Bess musket was the M16/M4 of its time, and civilians owned them.  Furthermore it was protected under the 2ND Amendment back then so why not now.

  • Random Stranger On The Internet

    "Shall not be infringed" . The government can eat a dick if they think they will take my firearms.

  • 5150psych

    Remove the judges, you know the way! No one has authority to infringe on gun rights. Pick up arms and remove the government that has run amuck. We have right to own any gun we want to fight criminals like these judges!

  • Mr. Nemesis

    In 1939, the Supreme Court said that everybody should be able to have military firearms. They ruled against having a short barreled shotguns because the military didn’t use it. In 1939, the military had m2 brownings and M1919s and they tompson so that means that we should be able to have AT4s and M240Bs

  • Tom n

    NOTE: @ 5:42 note how Finestein has her finger on the trigger while pointing the AK-47 at the crowd. This proves she is not qualified to be anti gun because she is a dumb sh*t.

  • Richard Ingame

    -The Brown Bess muskets used by both sides fires a .75 caliber round. Today anything over .50 is restricted by the government as a destructive device.

    -Cannons (Weapons of the American Revolution) were legal to own. There are some notable private artillery organizations still in existence today. Many early naval vessels were also privately-owned and were outfitted with cannons.

    -Swivel guns were smaller cannons with fixed mounts that could be quickly aimed in any direction. They were more efficient with multiple crew members, but this time period marked the beginning of when they could be effectively manned by a single person.

    -Mortars were indirect fire weapons. Smaller mortars were sometimes used as grenade launchers.

    -The ammunition for cannons and similar heavy weapons was not limited to large solid metal balls. There were exploding cannon balls, case shot, grape shot, bar shot (two balls chained together), and even hot shot (when the metal projectile was made red-hot just prior to loading in order to set structures on fire).

    -Hand grenades. Though not as prevalent as in later periods, yeah we had hand grenades then.

    -The Puckle gun was the first known revolving cannon. It fired a 32mm round, had a 11-round revolving cylinder, and was invented in 1718. It never saw mass production but demonstrations were performed and it was covered by the newspapers. What killed it was the fact that the parts for it could not be easily produced at that time.

    -The Girandoni Air Rifle fired a .46 caliber projectile and had a 20-round magazine. It was invented in 1779 and was used by the Lewis and Clark expedition.

    -The Belton flintlock was offered to Congress in 1777. It was capable of firing up to either sixteen or twenty rounds within either sixteen, ten, or five seconds. There are no known surviving examples but it was believed to function similar to a roman candle. Congress wanted a slower rate of fire but balked when they learned how much it would cost.

  • vocalpatriot

    Well then, the 4th circuit is wrong. The second amendment does not specify any particular type of arms…it simply defines our right to keep and bear them..Any of them, as many as we choose.
    And any type we choose. 4th circuit must be afraid of us if they seek to limit our defense and offense capabilities…to which I say: "Good!"

  • Demasys

    This is tyranny if the higher corts dont step in. It would be our duty to force theses tyrants out if not use the 2nd. Thats the point of the second.

  • D. M. Gerber

    The right of the people to keep and bear arms shall not be infringed. It has always been clear. I don't know what kind of world would read anything else.

  • SEBofcourse

    I'm confused. The second amendment didn't just drop from the sky and become the law of the land. These amendments were discussed, argued, and clarified before they were included. The framers clearly defined what weapons were protected and for what purpose. Simply, arms that were in common use by the individual soldier in the military at the time, were protected to ensure the security of a free state. Period. Why am I the only one who has read about this from original texts?

  • V 4 Vendetta

    Any and all gun legislation or codes are illegal. The 2nd ammendment doesn't give us the right to keep and bear arms. It prohibits the government from restricting our natural right to self defense especially from tyranny in our own government. We literally have the right to own whatever state of the art weaponry exists at the time. Arrest anyone who commits treason by infringing on that right.

  • Brian Smith

    The forefathers said that if our government becomes tyrannical then we have the right to replace it. How are we going to replace a tyrannical government without weapons like the AR15. I believe from studying our history that our forefathers wanted us to be just as armed as our government. That is why they said: "shall not be infrnged". They knew that our government would eventually become too big and tyrannical and they wanted us to be able to stop them like they did in the war for our independence from England.


    The second amendment does not protect weapons. It protects the individual State's rights to form militias. Someone with Esq behind their name should know this.


    Your channel is awesome Adam, but still way too many people are or have been under educated or grossly incorrectly educated on civil rights and the amendments….but there may be hope if we can unite 🇺🇸

  • william jonas


  • BRC 2323

    Ok, AR's weren't around when the constitution was written. But the rifles the government was possessing at the time weren't either. The purpose of the 2nd amendment was not for the purpose of hunting, it was for the protection from tyrannical government. As their weapons evolve then so should the civilian populations weapon in order to protect themselves.

  • charles finley

    I want to here what a true christen would say if a cop or someone like eric swalwell told you dontt have the right to have weapons from guns to a knife to defend himself or your family when out in public or when a burger threatening to kill your wife your daughters sisters sons because that me tell you something jesus christ god in the flash told us and gave us rights as true christens to defend ourselfs our family and our property and our pets horse include when the government tells you you cant have guns or anything to protect you and your family tell them you do have rights to defend yourself because jesus christ told us when the law of the land is against god law then we have the right to disobey aman

  • Tino Pacino

    Bullshit!!!!! Anything that has to do with our weapons are protected and the Government are breaking the Law of the Land!! So they can go Fk themselves because the American people aren’t going to take it much Longer!! That patriot Act should be No longer be in Affect because they are using it to try to take our rites not just the 2 but all of them so they can suck a big one!!!!

  • Tony Hunt

    My son & I were going to go out and kill policemen.
    After breakfast the weather was nicer than expected, so I went to play golf and my son went fishing instead. Maybe next weekend, possibly, perhaps.
    Oh sorry, not then, the families going surfing. Can't miss that.

    What's this document? "Firearms buy-back" wow, that's enough for a set of golf clubs & a fishing rod for my son.
    I don't really need those guns do l?

    The 3 "Cop Killers" who do turn up will be executed by snipers from 1 1/2 miles away & the rest of the world will laugh.

    THAT'S how it's going to look in real life!!!!

  • Robert Compton

    My right to own an AR is addressed in the 9th Amendment, and the 4th circuit is just another liberal court that issued a worthless legal opinion, not a law. f them

  • Adam Boyd

    The military doesn't get to dictate what fire arms we own based on how much they use them (Which this bill implies). it's a ridiculous premise. The people are the military AKA militia. And if every man is gonna sign his life to the service of his country in the event that war breaks out, well then he has the right to be prepared in advance. The people introducing this bill are ignorant enough to think that simply wearing a uniform changes the heart of a man that he can no longer do wrong if he wears the guise of the military or police.

  • verfed

    If the 2nd amendment doesn't protect the most popular rifle in the country, then the 1st amendment doesn't protect the most popular book in the country – the bible. We are living under tyranny if the constitution is meaningless.

  • Chris Kalning

    30 rounds is standard not “high capacity.” To anyone who claims that we do not need AR 15’s, they should ask themself, why do the police need them when we encounter the same threats as the police, except we encounter the threat before the police get there.

  • John Miller

    The rifle is a weapon that is protected under the second amendment. And you fucking criminal judges are ruling for what your puppet master wants. My right to bare arms against tirany in our government will not be infringe upon. Go fuck yourself!! I will not comply to any Nazzi unconstitutional gun laws. Period!!!

  • reb363

    If you believe that "A well regulated Militia, being necessary to the security of a free a State, the right of the people to keep and bear Arms, shall not be infringed" means the Right of the people to protect themselves from a Tyrannical Government, then "Weapons of War" are exactly what the Second Amendment was designed to protect.


    a little logic here…
    if the idea is that the people are in charge…
    And the people have the right to bear arms , even against the gov if it becomes necessary , right???
    I mean that's the idea right ???
    … ok so then it only makes sense that we would have the right to have the same access to weapons as we allow the gov to have.
    I don't understand why we continuously allow more and more gun restrictions…. I really dont…
    3% need more support and more action.

  • colt45 Peacemaker

    So I guess all gun sales after the technology of black powder muzzle loader the last 175 years was a big mistake according to the 4th circuit.

  • Mike Vanover

    So to recap the government will decide what's in the best interest to grow government. Which is the whole point of why we need the second amendment. The Constitution is the supreme law of the land courts be damned.

  • Joshua Grahm

    The way I've always thought of this is that there were a vast array of weapons technology available at the time of the creation of the constitution, yet none were specified as the kind you could have. That implies that at a minimum, civilians were supposed to have access to the small arms that the military had

  • billsixx

    Why are you hopping on one foot trying to comply with these un-Constitutional "laws"? If there are no protections under the 2nd Amendment, then, there are no protections under the entire Constitution unless we take them for ourselves.

  • Raminit

    The 2A says “shall not be infringed”. Limiting your Constitutional Right for arbitrary reasons like adjustable buttstocks, pistol grips, because it may look scary to someone, things that don’t make a firearm any more dangerous is the exact definition of infringement, therefore, it’s unconstitutional.

  • Bum fungus

    The founding fathers would say that any weapon in use by the military is protected by the second ammendment. The militias didn't win against muskets and cannons with bows and spears.

  • Jr Costilla

    People need to move to have all second amendment restrictions repealed as they are not legal and repealed or not non compliance either way will prove The determination to protect our rights as long as everyone sticks together and everyone holds firm disallowing any restrictions in any way

  • Kalvin Francis

    Yes the government is right. We are not allowed to have guns, ar's, ak's, machine guns, ex.. These things are never mentioned in the constitution. You need permission for them.
    But look what is mentioned in the constitution, for those that need it in writing(I don't care what it says, I know my rights) these things you can have: life, freedom, speech and arms and most of all property (aka the persuit of happiness.)
    Everything I have is called one word: property. I need no other words describe property any other words is to much information.

  • Dino Man

    “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!”

    -Benjamin Franklin
    our founding fathers said owning a cannon is fine, and i dont think they were talking about hunting.

  • Tony Lewis

    I disagree. The founders knew tech would evolve, they saw it in their own life times. They expected us to be equally armed as the government is, for the very reason the amendment exists. ( they never dreamed things like hunting or personal protection would ever be attacked, so they focused on our ability to up-rise against tyranny, or prevent it totally. )

  • D Harris

    I understand that this is a review of a court decision…. that being said… wrong answer, dick dancer.
    "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Pretty clear to me. 😎

  • Professor MAWillett

    How many militaries in the world use an AR-15 as their primary or for that matter, secondary weapon of choice? If none, then how is it a military style weapon?

Leave a Reply

Your email address will not be published. Required fields are marked *