KOLBE V.

HOGAN: THE FOURTH CIRCUIT INCORRECTLY APPLIED STRICT

SCRUTINY TO FIREARM REGULATIONSYET ACHIEVED THE CORRECT RESULT
IN (LIKELY) STRIKING DOWN ASSAULT WEAPONS BAN
I. INTRODUCTION

In 2008, the United States Supreme Court issued a landmark decision in District of Columbia v.

Heller,1 holding that the Second Amendment2 protected an individual right to keep and bear

arms.3 Since then, the Circuit Courts of Appeals have struggled to develop a workable, unified

standard for analyzing Second Amendment challenges to laws affecting firearms.4 The various

Circuit Courts have split on the precise handling of Second Amendment challenges, and have

come to conflicting results on several issues.5

In Kolbe v. Hogan,6 the United States Court of Appeals for the Fourth Circuit heard an appeal

from the United States District Court for the District of Maryland, at Baltimore, which had

applied intermediate scrutiny to a ban on semi-automatic assault rifles and larger-capacity

1
554 U.S. 570 (2008).
2
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. U.S. Const. amend. II.
3
District of Columbia v. Heller, 554 U.S. 570, 592 (2008). (we find that [the clauses of the
Second Amendment] guarantee the individual right to possess and carry weapons in case of
confrontation.).
4
See Kachalsky v. Cacace, 817 F. Supp. 2d 266-67 (S.D.N.Y. 2011) (describing the various
approaches Circuit Courts have adopted post-Heller to evaluate Second Amendment challenges).
5
Compare Kolbe v. Hogan,813 F.3d 160 (4th Cir. 2016) (reversing the dismissal of a Second
Amendment challenge to a ban on larger-capacity detachable magazines (LCMs), and ordering
strict scrutiny to be applied), with Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2014)
(affirming a District Courts decision which applied intermediate scrutiny and upheld a ban on
LCMs); compare also Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012)
(affirming a District Courts grant of summary judgment which upheld a proper cause
requirement to obtain a concealed-handgun license), with Peruta v. County of San Deigo, 742
F.3d 1144 (9th Cir. 2014), vacated and rehg granted, Peruta v. County of San Diego, 781 F.3d
1106 (9th Cir. 2015) (en banc), (reversing the decision of a District Court which upheld a good
cause requirement for obtaining a concealed-handgun license).
6
813 F.3d 160 (4th Cir. 2016).
detachable magazines (LCMs).7 In the District Court, several individual and organizational

plaintiffs brought a Second Amendment challenge to a series of Maryland statutes that forbid

assault rifles and LCMs holding more than ten rounds.8 The District Court determined that

intermediate scrutiny was appropriate for analyzing the claims, and upheld the validity of the

assault rifle and LCM ban.9 On appeal, the Fourth Circuit applied a First-Amendment-like

approach to determining the level of scrutiny, and determined that strict scrutiny was required to

assess the regulations.10 The Fourth Circuit vacated and remanded the District Courts decision,

with direction to apply strict scrutiny on remand.11

This Note will first review the facts and holding of Kolbe.12 This Note will then discuss the

jurisprudential evolution that led to the Second Amendment being interpreted as an individual

right.13 This Note will discuss the various approaches the Circuit Courts of Appeals have

addressed Second Amendment challenges in the wake of Heller.14 This Note will demonstrate

that the approach the Fourth Circuit used is inconsistent with the limited guidance provided in

Heller, and inappropriately analogized the Second Amendment to Free Speech jurisprudence.15

This Note will argue that the Fourth Circuit incorrectly applied strict scrutiny to Marylands

prohibition on assault rifle and LCM possession.16 Finally, this Note will conclude that despite

7
Kolbe, 813 F.3d at 192.
8
Id. at 169.
9
Id. at 171.
10
Id. at 179.
11
Id. at 192.
12
See infra notes 18-46 and accompanying text.
13
See infra notes 47-59 and accompanying text.
14
See infra notes 60-87 and accompanying text.
15
See infra notes 96-114 and accompanying text.
16
See infra notes 115-118 and accompanying text.
the mistaken level of review, the Maryland statutes violate the Second Amendment right to bear

arms, even under intermediate scrutiny.17

II. FACTS AND HOLDING

On May 16, 2013, the Governor of Maryland signed into law the Firearm Safety Act (FSA).18

Maryland-resident plaintiffs Stephen V. Kolbe, and Andrew C. Turner, as well as numerous

organizational plaintiffs19 (collectively Kolbe) brought an action in the United States District

Court for the District of Maryland, at Baltimore against Martin J. OMalley, Douglas F. Gansler,

Marcus L. Brown, and Maryland State Police (collectively Hogan) challenging the

Constitutionality of the FSA.20 The day after filing the complaint, Kolbe made a motion for a

temporary restraining order (TRO); the District Court heard argument on the TRO but decided

that Kolbe did not show they were entitled to extraordinary relief.21 Thereafter, the parties

agreed to file cross motions for summary judgment for the District Court to consider the case on

17
See infra notes 119-121 and accompanying text.
18
Kolbe v. OMalley, 42 F. Supp. 3d 768, 774 (D. Md. 2014). This was in response to a number
of recent mass shootings, particularly the Sandy Hook Elementary School shooting, The FSA
prohibited the possession, sale, offering of sale, transferring, purchasing, or receiving of assault
pistols, assault long guns, and copycat weapons. Id. at 775-76 (citing Md. Code Ann.,
Crim. Law (CR) 4-301(d), 4-303(a)(2), 4-305(b), 4-306). Similarly prohibited, were larger-
capacity detachable magazines (LCMs) that had a capacity of more than ten rounds of
ammunition. Id. Violation of the FSA would subject an individual to a misdemeanor punishable
by imprisonment up to three years or a fine up to $5,000, or both. Id. The only exceptions to the
FSA were for current, and (assuming a transfer was made before retirement) retired law
enforcement personnel. Id. (citing Md. Code Ann., Crim Law (CR) 4-302(7), 4-305(a)(2).
19
Including: Winks Sporting Goods, Inc., Atlantic Guns, Inc., Associated Gun Clubs of
Baltimore, Inc., Maryland Shall Issue, Inc., Maryland State Rifle and Pistol Association, Inc.,
National Shooting Sports Foundation, Inc., and Maryland Licensed Firearms Dealers
Association, Inc. Id.
20
Id. at 774.
21
Id. at 776.
the merits.22 The District Court found the FSA to be constitutional and granted Hogans

summary judgment motion.23

In Kolbe v. Hogan,24 Kolbe appealed the decision of the District Court to the United States Court

of Appeals for the Fourth Circuit.25 The Fourth Circuit approved of the two-step Second

Amendment inquiry engaged in by the District Court.26 The Fourth Circuit first addressed

22
Id.
23
Id. at 803. The District Court began their analysis by discussing the United States Supreme
Courts opinion in Heller, establishing the individual right to bear armsalong with some
limitations thereof. See generally id. at 782-784. See also infra notes 47-59 and accompanying
text, for a discussion of the Supreme Courts analysis in Heller. The District Court engaged in a
two-step analysis: first, determining whether the Second Amendment was infringed by a
regulation affecting firearms commonly possessed for lawful purposes. OMalley, 42 F. Supp. 3d
at 784. The District Court stated that they seriously doubted that assault rifles and LCMs were
commonly possessed for lawful purposes, but did not resolve the question, choosing instead to
carry on to the second stage in the analysis: ascertaining and applying means-end scrutiny. Id. at
789.
The District Court analogized to the First Amendment context and concluded that intermediate
scrutiny was appropriate as the FSA did not seriously impact a persons ability to defend himself
in the home, which they held to be the Second Amendments core protection. Id. at 790.
Applying intermediate scrutiny, the District Court found that the government had a substantial
interest in providing for public safety and preventing crime. Id. at 792. Requiring only a
reasonable fit between the governments substantial interest and the FSA, the District Court
summarily concluded that the ban would protect citizens and law enforcement as assault rifles
were more deadly than that of handguns, and handguns adequately satisfied the Second
Amendments core value of self-defense in the home. See generally id. at 793-96. For discussion
on why this characterization of the intermediate scrutiny test is flawed, see infra notes 115-118
and accompanying text.
24
813 F.3d 160 (4th Cir. 2016).
25
Id. at 171.
26
Id. The Fourth Circuit noted that this two-step inquiry had been adopted by several other
Circuit Courts, and delineated the test as: First, we ask whether the challenged law imposes a
burden on conduct falling within the scope of the Second Amendment guarantee. The answer to
this question requires an [sic] historical inquiry into whether the conduct at issue was understood
to be within the scope of the right at the time of ratification. If the answer to this initial inquiry is
no. the challenged law is valid. However, [i]f the challenged regulation burdens conduct that was
within the scope of the Second Amendment as historically understood, then we move to the
second step of applying an appropriate form of means-end scrutiny. Id. at 171-72 (multiple
quotation marks and citations omitted).
whether the FSAs ban implicated Second Amendment rights by infringing on the individual

right to possess and carry firearms in case of confrontation, noting that the central component of

the Second Amendmentindividual self-defensewas at its greatest strength within the home.27

Tracking the approach taken in Heller, the Fourth Circuit determined whether Second

Amendment rights were implicated by addressing whether the weapons affected by the FSA

were: commonly possessed, for lawful purposes, and whether the weapons were dangerous and

unusual.28

The Fourth Circuit had little trouble declaring that semi-automatic rifles were in common-use by

law-abiding citizens, based primarily on ownership statistics.29 The Fourth Circuit also found

that the number of LCMs kept by American citizens easily established its common use.30

Importantly, the Fourth Circuit found that LCMs fell within the protection provided by the

Second Amendment.31

27
Id. at 172. (citing District of Columbia v. Heller, 554 U.S. 570 (2008)).
28
See generally id. at 174-79.
29
Id. at 174 (quoting Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1261 (D.C. Cir.
2011)) (Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in
2007 this one popular model accounted for 5.5 percent of all firearms, and domestic market.).
See also Colorado Outfitters Assn v. Hickenlooper, 24 F. Supp. 3d 1050, 1068 (D. Colo. 2014)
(lawfully owned semi-automatic firearms using a magazine with a capacity greater than 1
rounds number in the tens of millions). The record before the Fourth Circuit also established
that in recent years, semi-automatic rifles accounted for twenty percent of all retail firearms
salesthe number of AK- and AR-style weapons, made and imported in the United States,
alone, was more than double the number of Ford F-150 trucks sold. Kolbe, 813 F.3d at 174.
30
Id. The Fourth Circuit found that more than seventy-five million such magazines were
circulated within the United States. Id.
31
Id. at 175. (without the ability to actually fire a gun, citizens cannot effectively exercise the
right to bear arms.). The Fourth Circuit also referenced Hellers historical discussion of the
definition of arms, defined as weapons of offense, or armour of defence, anything that a
man . . . takes into his hands, or useth in wrath to cast at or strike another. Id. (quoting Heller,
554 U.S. at 581).
The Fourth Circuit next turned to the question of whether the assault rifles and LCMs prohibited

by the FSA were commonly used for lawful purposes.32 Kolbe asserted that the semi-automatic

rifles, along with LCMs, were desired for self-defense within the home; Kolbe presented survey

evidence demonstrating that this was a primary reason for the purchase of weapons banned under

the FSA, as well as a 1989 Report of the Bureau of Alcohol, Tobacco, and Firearms indicating

that self-defense was a legitimate purpose for semi-automatic rifles.33 Hogan argued that the

actual use of assault rifles for self-defense was not common, however the Fourth Circuit rejected

the idea that Second Amendment rights depended on how often weapons were actually used

considering instead whether law-abiding citizens typically possessed them for self-defense.34

Additionally, noting that the burden was on the government to show a weapon or activity was

outside the scope of Second Amendment protection, the Fourth Circuit found that there was no

long-standing tradition of prohibiting assault rifles or LRMs.35 Accordingly, this requirement of

lawful use was also satisfied.36

Moving on to the final element of determining whether Second Amendment rights were

implicated, the Fourth Circuit looked to the language of Heller which asserted that dangerous

and unusual weapons were entirely outside the scope of the right protected by the Second

Amendment.37 Since all firearms are inherently dangerous, the Fourth Circuit reasoned that this

exclusion only applied if the term was applied in the conjunctive, such that the weapon must be

32
Kolbe, 813 F.3d at 175-76.
33
Id. at 175-76.
34
Id. at 176. The proper standard under Heller is whether the prohibited weapons are typically
possessed by law-abiding citizens for lawful purposes as a matter of history and tradition. Id.
(quoting Heller, 554 U.S. at 627) (emphasis added in Kolbe).
35
Kolbe, 813 F.3d at 177. There is no record evidence or historical documentation that these
weapons were at all prohibited until relatively recently. Id.
36
Id.
37
Id.
both dangerous and unusualfrom here, the evidence showing that assault rifles and LCMs

were in common usage essentially disposed of any argument that these items could be considered

sufficiently unusual to fall outside of Second Amendment protection.38 With these

considerations out of the way, the Fourth Circuit found the FSA to infringe Second Amendment

rights.39

With the first stage of inquiry completed, the Fourth Circuit turned to the question of which level

of scrutiny to apply to the FSA.40 The Fourth Circuit relied on a First-Amendment-like approach

that they had established in an earlier case.41 Likening regulations infringing on the Second

Amendment to content-based versus content-neutral regulations in Free Speech jurisprudence,

the Fourth Circuit stated that regulations touching upon the core of Second Amendment rights

would be subjected to strict scrutiny, whereas regulations incidentally burdening rights would be

subject to only intermediate scrutiny.42 As the FSA did not merely regulate firearms, but

eliminated an entire class of firearms altogether, the Fourth Circuit held that the FSA

substantially burdened the core right of self-defense.43 The Fourth Circuit distinguished between

regulations that applied in the home, as opposed to regulations that applied only outside the

home; as the FSA prohibited assault rifles and LCMs in any location, it fell into the former

38
Id. If the firearm in question is commonly possessed for lawful purposes, it certainly isnt
rare and thereby unusual. Id.
39
Id. at 178. In sum, semi-automatic rifles and LCMs are commonly used for lawful purposes,
and therefore come within the coverage of the Second Amendment. Id.
40
Id. at 180.
41
Id. The Fourth Circuit referred to their opinion in United States v. Chester, 628 F.3d 673 (4th
Cir. 2010). For a discussion of the analysis in Chester and criticism of the First-Amendment
approach adopted therein, see infra notes 81-87 and accompanying text.
42
Kolbe, 813 F.3d at 180.
43
Id.
category.44 Again analogizing to the First Amendment, the Fourth Circuit held that the FSAs

ban on assault rifles and LCMs was similar to a law foreclosing an entire medium of

expression.45 The Fourth Circuit refrained from applying strict scrutiny, choosing instead to

vacate the District Courts judgment and to remand the case for further proceedings subject to

strict scrutiny.46

III. BACKGROUND

A. ESTABLISHING AN INDIVIDUAL SECOND AMENDMENT RIGHT

In District of Columbia v. Heller,47 the United States Supreme Court held that the Second

Amendment guaranteed an individual right to bear arms for the principle purpose of self-

defense.48 In Heller, Dick Heller, a special policer officer, sued the District of Columbia arguing

that District of Columbia law, prohibiting the possession of handguns and requiring long guns in

the home to be inoperable, violated the Second Amendment.49

44
Id. at 181. This long-standing out-of-the-home/in-the-home distinction bears directly on the
level of scrutiny applicable, with strict scrutiny applying to laws restricting the right to self-
defense in the home[.] Id. (quoting United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir.
2011)) (internal citation omitted).
45
Kolbe, 813 F.3d at 183. (quoting City of Ladue v. Galleo, 512 U.S. 43, 55 (1994)).
46
Kolbe, 813 F.3d at 184. Because the district court did not evaluate the provisions of the FSA
under the proper standard of strict scrutiny, and the State did not develop the evidence or
arguments required to support the FSA under the proper standard, we vacate the district courts
order as to Plaintiffs Second Amendment challenge and remand for the court to apply strict
scrutiny in the first instance. This is not a finding that Marylands law is unconstitutional. It is
simply a ruling that the test of its constitutionality is different from that used by the district court.
The State should be afforded the opportunity to develop its case in light of this more demanding
standard, and Plaintiffs should be permitted to do so as well. Id.
47
District of Columbia v. Heller, 554 U.S. 570 (2008).
48
District of Columbia v. Heller, 554 U.S. 570, 592 (2008).
49
Id. at 575-76. The Federal District Court for the District of Columbia dismissed Hellers
complaint. Id. at 576. Heller then appealed to the United States Court of Appeals for the District
of Columbia Circuit. Id. The D.C. Circuit reversed and found the Second Amendment to protect
The Supreme Court first engaged in an analysis of the operative clause of the Second

Amendment.50 The Court began by pointing out that every other mention in the Constitution of

the people referred to individualas opposed to collectiverights.51 The Court then parsed

the language Keep and Bear Arms.52 Relying primarily on 18th-century dictionaries, the Court

found that the Arms protected by the Second Amendment were not tied strictly to militia use,

but were weapons of any type which a citizen used for his defense.53 The Court also rejected the

argument that only arms in existence in the 18th century were protected, pointing out that such

rationale does not control any other protections in the Bill of Rights.54

After consulting various historical sources, the Court held that the operative clause of the Second

Amendment guaranteed an individual right to possess and carry weapons for self-defense.55 The

Court also found that the prefatory clause simply announced a purpose to the Second

an individual right to possess firearms, the D.C. Circuit directed the District Court to enter
summary judgment for Heller. Id. The District of Columbia appealed. Id.
50
Id. at 579 (quoting U.S. Const. amend. II.) (the right of the people to keep and bear Arms,
shall not be infringed.).
51
Heller, 554 U.S. at 578. The unamended Constitution and the Bill of Rights use the phrase
right of the people two other times, in the First Amendments Assembly-And-Petition Clause
and in the Fourth Amendments Search-And-Seizure Clause. . . . All three of these instances
unambiguously refer to individual rights, not collective rights, or rights that may be exercised
only through participation in some corporate body. Id.
52
Id. at 581.
53
Id. Common dictionaries of the time defined arms as [w]eapons of offence, or armour of
defense. 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978), or any thing that
a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike
another. 1 A New and Complete Law Dictionary.
54
Heller, 554 U.S. at 581. Some have made the argument, bordering on the frivolous, that only
those arms in existence in the 18th century are protected by the Second Amendment. We do not
interpret Constitutional rights that way. Just as the First Amendment protects modern forms of
communications, and the Fourth Amendment applies to modern forms of search, the Second
Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that
were not in existence at the time of the founding. Id. (internal citations omitted).
55
Id. at 592.
Amendment, rather than limited the scope of the rightspecifically focusing on the fact that the

power to call and organize militias was already enumerated in the Constitution and presupposed

an existing militiasuch that the Second Amendment could not be considered to create such

militia or be limited to protection of the right to bear arms in connection with a militia.56 The

Court finally carved out a few narrow types of regulations which would be presumptively

Constitutional despite the Second Amendment.57 The Court then turned to the law in question.58

Other than dropping a footnote ruling out rational basis as an appropriate standard of review in

Second Amendment challenges, the Court declined to establish which level of scrutiny to use

instead striking down the D.C. laws as they would fail under any heightened standard of

review.59

B. UNITED STATES CIRCUIT COURTS OF APPEALS SPLINTER ON APPLICATION OF HELLER TO

FIREARMS REGULATIONS

In United States v. Marzzarella,60 a defendant, Michael Marzzarella, appealed his conviction for

possession of a handgun with an obliterated serial number to the United States Court of Appeals

56
Id. at 596. Congress is given the power to create (to raise . . . Armies; to provide . . . a
Navy, Art. I, 8, cls. 12-13), the militia is assumed by Article I already to be in existence.
Congress is given to power to provide for calling forth the Militia, 8, cl. 15; and the power
not to create, but to organiz[e] itand not to organize a militia, which is what one would
expect if the militia were to be a federal creation, but to organize the militia, connoting a body
already in existence, ibid. cl. 16. Id. (emphasis in original).
57
Id. at 626-27. Like most rights, the right secured by the Second Amendment is not unlimited.
. . . [it is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose. . . . nothing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of arms. Id.
58
Id. at 628.
59
Id. Under any of the standards of scrutiny that we have applied to enumerated constitutional
rights, banning from the home the most preferred firearm in the nation to keep and use for
protection on ones home and family, would fail constitutional muster. Id. (internal citation
omitted).
60
United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010).
for the Third Circuit, arguing that such was a violation of the Second Amendment.61 The Third

Circuit went along with the two-staged inquiry for Second Amendment challenges.62 The Third

Circuit, however, took a unique approach to the presumptively lawful regulatory measures

identified in Hellerregarding these exclusions as falling outside the scope of the Second

Amendment entirely, rather than simply being presumptively valid for their ability to pass

means-end scrutiny.63 Yet, the Third Circuit stated that one of these regulations, that of

commercial regulations on the sale of firearms, was the only one that did not fall outside the

scope of Second Amendment protection.64 The Third Circuit also found there to be no protection

whatsoever under the Second Amendment for possession by felons and the mentally ill, or the

carrying of weapons in sensitive places.65 The Third Circuit found the prohibition of firearms

with obliterated serial numbers to be Constitutional.66

61
Id. at 87.
62
Id. at 89. As we read Heller, it suggests a two-pronged approach to Second Amendment
Challenges. First, we ask whether the challenged law imposes a burden on conduct falling within
the scope of the Second Amendments guarantee. . . . If it does, we evaluate the law under some
form of means-end scrutiny. Id. (internal citation omitted).
63
Id. at 91. (this language could be read to suggest the identified restrictions are presumptively
lawful because they regulate conduct outside the scope of the Second Amendment.).
64
Id. n. 8. Commercial regulations on the sale of firearms do not fall outside the scope of the
Second Amendment under this reading. Heller endorsed laws imposing conditions and
qualifications on the commercial sale of firearms. In order to uphold the constitutionality of a
law imposing a condition on the commercial sale of firearms, a court necessarily must examine
the nature and extent of the imposed condition. If there were somehow a categorical exception
for these restrictions, it would follow that there would be no constitutional defect in prohibiting
the commercial sale of firearms. Such a result would be untenable under Heller. Id. (internal
citation omitted).
65
Id. at 92.
66
Id. at 101.
In Peruta v. County of San Diego,67 plaintiff Edward Peruta, and others68 (collectively the

applicants) brought a Second Amendment challenge to a set of California laws which prohibited

the open or concealed carry of handguns in public; an appeal from the District Courts grant of

summary judgment to the State was taken by the United States Court of Appeals for the Ninth

Circuit.69 Similar to the Third Circuit, the Ninth Circuit considered the presumptively

constitutional regulations mentioned in Heller to fall entirely outside the scope of Second

Amendment protections.70 In contrast to many other Circuits, the Ninth Circuit criticized the

ends-mean scrutiny other Circuits had used.71 Several other Circuits had emphasized deference

to legislative determinationsan approach anathema to heightened scrutiny.72 The Ninth Circuit

noted that other Circuits had improperly imported language from First Amendment

jurisprudence.73 The government always bore the burden in heightened scrutiny, and the few

situations relied on by other Circuits from First Amendment jurisprudence only gave deference

to the asserted endnot the meansused by a regulation.74 The Ninth Circuit ultimately

reversed the District Courts grant of summary judgment to the defendants, and found the

California laws to violate the Second Amendment.75

67
Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014), vacated and rehg granted,
Peruta v. County of San Diego, 781 F.3d 1106 (9th Cir. 2015) (en banc).
68
Michelle Laxson, James Dodd, Leslie Buncher, and Mark Cleary
69
Peruta, 742 F.3d at 1147.
70
Id. at 1172.
71
Id. at 1176.
72
Id. [This approach] is near-identical to the freestanding interest-balancing inquiry that
Justice Breyer proposedand that the majority explicitly rejectedin Heller. Id.
73
Id. at 1177. Although [the Second, Third, and Fourth Circuits] all [] cite Turner Broadcasting
System, Inc. v. FCC (Turner II), 520 U.S. 180 (1997), for the proposition that courts must afford
deference to legislative findings, they apply this premise in the wrong context. Id.
74
Id.
75
Id. at 1179.
In Kachalsky v. County of Westchester,76 plaintiffs Alan Kachalsky, Christina Nikolov, Johnnie

Nance, Anna Marcucci-Nance, and Eric Detemer (collectively the applicants), challenged New

Yorks proper cause requirement for obtaining a concealed handgun license; the District Court

granted summary judgment for the State, finding that concealed carry was outside the scope of

the Second Amendment; the applicants appealed to the United States Court of Appeals for the

Second Circuit.77 Of relevance to this Note, the Second Circuit criticized the approach of other

Circuits which had used First Amendment jurisprudence to decide Second Amendment

challenges.78 The Second Circuit pointed out that many analogies between the two Amendments

previously made by the Supreme Court were often in the context of regulations limiting rights.79

The Second Circuit did not see the two Amendments are being transferrable.80

C. THE FOURTH CIRCUIT RELIED ON PRECEDENT ESTABLISHED IN UNITED STATES V. CHESTER.

In United States v. Chester,81 the United States Court of Appeals for the Fourth Circuit first

addressed a Second Amendment challenge in a case where defendant William Samuel Chester

appealed his conviction for being in possession of a firearm despite having a misdemeanor

domestic violence conviction.82 The Fourth Circuit, based on the United States Supreme Courts

76
701 F.3d 81 (2d Cir. 2012).
77
Id. at 83.
78
Id. at 91. We are hesitant to import substantive First Amendment principles wholesale into
Second Amendment jurisprudence. Id. (emphasis in original).
79
Id. at 92. Notably, these analogies often used the states power to regulate firearms, which
was taken as unassailably obvious, to support arguments in favor upholding limitations on First
Amendment rights. Id.
80
Id. Endorsing that approach would be an incautious equation of the two amendments and
could well result in the erosion of hard-won First Amendment rights. As discussed throughout,
there are salient differences between the states ability to regulate each of these rights. Id.
81
628 F.3d 673 (4th Cir. 2010). See supra note 41 and accompanying text for a discussion of the
Fourth Circuits reliance on Chester in deciding Kolbe.
82
United States v. Chester, 628 F.3d 673, 677 (4th Cir. 2010). Chester was convicted for
possessing a firearm after being convicted of a misdemeanor crime of domestic violence in
violation of 18 U.S.C. 922(g)(9).
references to the First Amendment in Heller, decided to look to the First Amendment in

developing a standard of review for the Second Amendment.83 The Fourth Circuit selected

intermediate scrutiny as the standard of review for this situation, viewing this law not as a

restriction upon the central concern of self-defense, but only as a regulation.84 The Fourth

Circuit also focused on the individual brining the challengeas opposed to the use infringed

uponin finding that Chesters status as a non-law-abiding citizen supported not applying strict

scrutiny.85 The Fourth Circuit remanded the case to give the government an opportunity to

satisfy intermediate scrutiny.86 Judge Davis, concurring in the judgment only, criticized much of

the majoritys analysis.87

83
Chester, 628 F.3d at 682.
84
Id. (quoting United States v. Skoien, 587 F.3d 803, 813-14 (7th Cir. 2009)). But less severe
burdens on the right, laws that merely regulate rather than restrict, and laws that do not implicate
the central self-defense concern of the Second Amendment, may be more easily justified. Id.
85
Id. at 682-683. Although Chester asserts his right to possess a firearm in his home for the
purpose of self-defense, we believe his claim is not within the core right identified in Hellerthe
right of a law-abiding, responsible citizen to possess and carry a weapon for self-defenseby
virtue of Chesters criminal history as a domestic violence misdemeanant. Accordingly, we
conclude that intermediate scrutiny is more appropriate than strict scrutiny for Chester and
similarly situated persons. Id. (internal citation omitted) (emphasis in original).
86
Id. at 683.
87
Id. at 687 (Davis, J., concurring). Judge Davis was hesitant to import First Amendment
principles: But these limited references [in Heller] are hardly an invitation to import the First
Amendments idiosyncratic doctrines wholesale into a Second Amendment context, where,
without a link to expressive conduct, they will often appear unjustified. To the extent some
commentators and courts, frustrated with Hellers lack of guidance, have clung to these
references and attempted to force unwieldy First Amendment analogies, they muddle, rather than
clarify, analysis. Id.
Judge Davis also disagreed with the majoritys approach of focusing on the individual, rather
than their conduct, for purposes of determining Second Amendment protection. As for the
majoritys observation that here we are seeking to determine whether a person, rather than the
persons conduct, is unprotected by the Second Amendment, Maj. Op. at 12, I am dubitante.
This seems to invite a comparison to the First Amendments application to expressive conduct
and to suggest that, because here we would exclude a person, rather than the persons conduct,
from constitutional immunity, the government should bear a heaver burden in establishing that
Chesters claim is outside the purview of the Second Amendment. Again, however, the First
IV. ANALYSIS

In Kolbe v. Hogan,88 the United States Court of Appeals for the Fourth Circuit applied strict

scrutiny to a law prohibiting assault rifles and larger-capacity detachable magazines (LCMs).89

In Kolbe, individual and organization plaintiffs (collectively Kolbe) appealed a summary

judgment for the State defendants (collectively Hogan) in a lawsuit by Kolbe challenging

Marlands Firearm Safety Act (FSA).90 The Fourth Circuit applied a First-Amendment-like

approach, finding the FSA to substantially burden core Second Amendment rights, meriting strict

scrutiny review.91 The Fourth ultimately remanded the case for the District Court to apply strict

scrutiny.92

First, this Analysis will argue that the United States Supreme Courts language in Heller listing

certain regulations as presumptively constitutional suggests that intermediate scrutiny is the

correct standard.93 Then this Analysis will argue that First Amendment jurisprudence is a poor

Amendment analogy breaks down. The law has long believed that no danger flowing from
speech can be deemed clear and present, unless the incidence of the evil apprehended is so
imminent that it may befall before there is opportunity for full discussion, and that the remedy
to be applied is more speech, not enforced silence. Whitney v. California, 274 U.S. 357, 377, 47
S. Ct. 641, 71 L. Ed. 1095 (1927) (Brandeis, J., concurring). This principle has no application to
gun violence, and prohibiting violent criminals from owning guns cannot fairly be compared to
permanently silencing some class of persons. Chester, 628 F.3d at 688 (Davis, J., concurring).
Finally, Judge Davis also criticized the improperly lenient intermediate scrutiny standard
delineated by the majority. Intermediate scrutiny queries whether a statute is substantially
related to an important governmental interest. Id. at 690 (citing cases) (emphasis added).
88
813 F.3d 160 (4th Cir. 2016).
89
See infra notes 110-114 and accompanying text.
90
Kolbe, 813 F.3d at 168-70. A series of statutes under the FSA prohibited possession, sale,
transport, purchase or receipt of any weapon designated as an assault rifle, or copycat
weapons. So too were LCMs holding more than ten rounds of ammunition prohibited. See Md.
Code Ann., Crim. Law (CR) 4-301(d), 4-303(a)(2), 4-305(b), 4-306).
91
Kolbe, 813 F.3d at 179-80.
92
Id. at 184.
93
See infra notes 96-105 and accompanying text.
fit for application to Second Amendment rights.94 Finally, this Analysis will show that the

intermediate scrutiny standard mentioned in Kolbe was incorrect, and that a proper application of

intermediate scrutiny would result in the FSAs prohibitions being found to violate the Second

Amendment.95

A. THE PRESUMPTIVELY CONSTITUTIONAL REGULATIONS LISTED IN HELLER WOULD BE

JEOPARDIZED UNDER STRICT SCRUTINY, SUGGESTING THAT INTERMEDIATE SCRUTINY IS A MORE
APPROPRIATE STANDARD

While the United States Supreme Court in District of Columbia v. Heller96 provided limited

guidance for future Second Amendment challenges, it did provide a non-exhaustive list of

presumptively lawful measures which were not to be put in doubt by the Courts decision.97

Several Circuit Courts have ignored the presumptively terminology, and listed these measures

as being entirely outside the scope of the Second Amendment.98 Such an approach is

analytically inconsistent, even the United States Court of Appeals for the Fourth Circuit

recognized as such in United States v. Chester.99100 Circuits that have taken this approach have

run into inconsistencies.101

94
See infra notes 106-114 and accompanying text.
95
See infra notes 115-121 and accompanying text.
96
554 U.S. 570 (2008).
97
Id. at 627.
98
See generally e.g., Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014); United
States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010).
99
628 F.3d 673 (4th Cir. 2010).
100
Id. at 679. This approach, however, approximates rational-basis review, which has been
rejected by Heller. In fact, the phrase presumptively lawful regulatory measures suggests the
possibility that one or more of these longstanding regulations could be unconstitutional in the
face of an as-applied challenge. Id. (quoting United States v. Williams, 616 F.3d 685, 692 (7th
Cir. 2010)) (internal citations omitted) (emphasis added in Chester).
101
See Marzzarella, 614 F.3d at 91-2 (finding that these limitations are exceptions to the right
to bear arms, yet then struggling in n. 8 to distinguish one specific limitation, commercial
regulations on the sale of firearms, as being the only limitation not to fall outside the scope of the
Second Amendmentas such would be untenable under Heller).
Rather, it is more sensible to consider these imitations are being exactly what the Supreme Court

said, presumptively constitutional limitations.102 It is difficult to distinguish exactly which

laws are merely regulatory in nature, something considered to be a mere manner regulation

by some, may be considered to strike at the core of Second Amendment rights by another.103

The exacting test of strict scrutiny would imperil many of Hellers presumptively lawful

regulations.104 Intermediate scrutiny provides a more appropriate standard of review that allows

regulations to be struck down if not sufficiently tailored to achieve the legislations asserted end,

while protecting the majority of Hellers presumptively lawful regulatory measures.105

B. FIRST AMENDMENT JURISPRUDENCE IS AN IMPROPER PROXY FOR SECOND AMENDMENT RIGHTS

Numerous Circuit Courts of Appels have looked to First Amendment jurisprudence in

developing a framework for Second Amendment challenges, yet, the First Amendment serves as

a poor proxy for Second Amendment rights.106 It is true that Heller mentioned the First

102
Heller, 554 U.S. at 626-27.
103
Compare Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (affirming a
District Courts grant of summary judgment which upheld a proper cause requirement to
obtain a concealed-handgun license), with Peruta v. County of San Deigo, 742 F.3d 1144 (9th
Cir. 2014), vacated and rehg granted, Peruta v. County of San Diego, 781 F.3d 1106 (9th Cir.
2015) (en banc), (reversing the decision of a District Court which upheld a good cause
requirement for obtaining a concealed-handgun license).
104
The strict-scrutiny standard requires the government to prove its restriction is narrowly
tailored to achieve a compelling governmental interest. Abrams v. Johnson, 521 U.S. 74, 82
(1997); see Citizens United v. Federal Election Commn, 558 U.S. 310, 340 (2010) (explaining
strict scrutiny requires the Government to prove that the restriction furthers a compelling
interest and is narrowly tailored to achieve that interest (internal quotation marks omitted)). To
be narrowly tailored, the law must employ the least restrictive means to achieve the compelling
government interest. Kolbe, 813 F.3d at 179 (citation omitted).
105
See infra notes 115-118 and accompanying text for a discussion of the means-end fit required
by intermediate scrutiny.
106
See Chester, 628 F.3d at 686 (Davis, J., concurring) (expression is, by its very nature, so
mutable, overbroad regulations can easily encourage speakers to modify their speech, shifting it
away from controversy. No analogous arguments obtain in the Second Amendment context.).
Amendment several times, but only in comparing the importance of the rights.107 The very

nature of the Second Amendment imagines more potential danger as a result of its incautious

exercise than could be done by words alone, transferring the two doctrines would be

imprudent.108 First Amendment jurisprudence is prefaced on the idea that when in doubt, more

speech is neededSecond Amendment rights have the salient potential to endanger the public

when more of the right is allowed.109

The Fourth Circuit in Kolbe settled on strict scrutiny by relying on this First Amendment analogy

and finding that the FSA placed a total prohibition on certain types of arms, rather than

107
See Kachalsky v. County of Westchester, 701 F.3d 81, 92 (2d Cir. 2012) (explaining that such
analogies have been frequently made in explaining the origins of rights: The liberty of the press
was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the
right to keep fire arms, which does not protect him who uses them for annoyance or
destruction.).
108
Id. at 91. We are hesitant to import substantive First Amendment principles wholesale into
Second Amendment jurisprudence. Id. (emphasis in original). Notably, these analogies often
used the states power to regulate firearms, which was taken as unassailably obvious, to support
arguments in favor upholding limitations on First Amendment rights. But it would be as
imprudent to assume that the principles and doctrines developed in connection with the First
Amendment apply equally to the Second, as to assume that rules developed in the Second
Amendment context could be transferred without modification to the First. Endorsing that
approach would be an incautious equation of the two amendments and could well result in the
erosion of hard-won First Amendment rights. As discussed throughout, there are salient
differences between the states ability to regulate each of these rights. Id. at 92.
109
Compare Texas v. Johnson, 491 U.S. 397, 408-09 (1989) (A principal function of free
speech under our system of government is to invite dispute. It may indeed best serve its high
purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are,
or even stirs people to anger.), with Chester, 628 F.3d at 688 (Davis, J., concurring) (The law
has long believed that no danger flowing from speech can be deemed clear and present, unless
the incidence of the evil apprehended is so imminent that it may befall before there is
opportunity for full discussion, and that the remedy to be applied is more speech, not enforced
silence. This principle has no application to gun violence, and prohibiting violent criminals
from owning guns cannot fairly be compared to permanently silencing some class of persons.)
(internal citation omitted). A condition of unrest, and a stirring of anger may be desirable in the
Free Speech contextindeed, it may be then that the right serves its high purpose. Unrest and
anger, however, do not seem nearly as desirable when all parties involved are armed.
regulating usage.110 Yet, the same could be said for prohibitions on firearm possession by felons

or the mentally ill, all firearm ownership is prohibited under such measures.111 The Fourth

Circuit also found strict scrutiny to be warranted because the FSA restricted the right inside the

home.112 But regulation prohibiting firearm possession by those under protective orders, and not

allowing possession of firearms in the home without serial numbers, also directly prohibit the use

of firearms in the home for the use of self-defense.113 Rather than analogizing to the First

Amendment to differentiate the scrutiny applied, it would make more sense to consider such

prohibitions as being lawful not for only incidentally burdening a rightbut rather as simply

being able to pass intermediate scrutiny.114

C. THE FOURTH CIRCUIT APPLIED AN EXCESSIVELY LENIENT VERSION OF INTERMEDIATE SCRUTINY

In deciding Kolbe, the Fourth Circuit characterized intermediate scrutiny as merely requiring a

reasonable fit between the means and end of a statute.115 This is an improper statement of

intermediate scrutiny, which required the means to be substantially related to the end (i.e.

something in between a rational-basis and the least restrictive alternative).116 A reasonable fit is

110
Kolbe, 813 F.3d at 183. Marylands outright ban on LCMs and assault weapons is akin to
a law that foreclose[s] an entire medium of expression. Id.
111
Heller, 554 U.S. at 626.
112
Kolbe, 813 F.3d at 181 (any law that would burden the fundamental core right of self-
defense in the home by a law-abiding citizen would be subject to strict scrutiny.).
113
See United States v. Reese, 627 F.3d 792 (10th Cir. 2010) (upholding a prohibition of firearm
ownership by anyone subject to a protection order); United States v. Marzzarella, 614 F.3d 85
(3d Cir.) (upholding conviction of possession in the home of firearms without a serial number).
114
See Marzzarella, 614 F.3d at 100 (finding that the requirement of serial numbers on firearms
allows law enforcement to trace weapons used in crime, allowing for more efficient prosecution
of violent offenses, and allows for regulation of firearm ownership by individuals who have lost
the right to possess firearms).
115
Kolbe, 813 F.3d at 179. [I]ntermediate scrutiny requires the government to demonstrate . . .
that there is a reasonable fit between the challenged regulation and a substantial government
objective. Id. (quoting Chester, 628 F.3d at 683).
116
See e.g., Peruta, 742 F.3d at 1177 ([intermediate scrutiny] require[s] the government to
prove that the statute [does] not burden the right substantially more . . . than is necessary to
appropriate only in rational-basis review, and, in fact, is the reason the Supreme Court

specifically ruled it out.117 By misinterpreting First Amendment jurisprudence and applying and

defining an improperly weak version of intermediate scrutiny, the Fourth Circuit set up a straw

man that was easy to knock down as a tool to apply strict scrutiny insteadwhich practically

guarantees the illegality of most firearm regulations.118

Intermediate scrutiny, properly expressed, would be sufficient to strike down the FSA for having

overly broad means.119 While the governments asserted end in Kolbe was surely important

even compellingthe complete prohibition of an entire class of weapons legitimately used by

law-abiding citizens for self-defense within the home is not substantially related to that end.120

While the means under intermediate scrutiny need not be the least restrictive alternative, they

further the governments legitimate interests.) (emphasis added); Reese, 627 F.3d at 802 (To
pass constitutional muster under intermediate scrutiny, the government has the burden of
demonstrating that its objective is an important one and that its objective is advanced by means
substantially related to that objective.) (emphasis added); Kachalsky, 701 F.3d at 96 (The
proper cause requirement passes constitutional muster if it is substantially related to the
achievement of an important governmental interest.) (emphasis added).
117
Heller, 554 U.S. at 628 n.27 (If all that was required to overcome the right to keep and bear
arms was a rational basis, the Second Amendment would be redundant with the separate
constitutional prohibitions on irrational laws, and would have no effect.).
118
See Kolbe, 813 F.3d at 198 (King, J., dissenting) (the panel majority has guaranteed the
demise of the FSA and other sensible gun-control measures within this Circuit. After all, though
strict scrutiny may not be strict in theory, but fatal in fact, it is at least the most demanding test
known to constitutional law.) (internal citations omitted). This same concern about the fatality
of strict scrutiny on most regulations relates back to the concern that applying such scrutiny
would be fatal to nearly all regulations falling under Hellers presumptively lawful measures.
119
See Peruta, 742 F.3d at 1177 (striking down a good reason licensing requirement for
serving the asserted end of public safety no better than a random rationing system, wherein gun
applicants were limited to every tenth applicant.).
120
Id. (finding a gun regulation not to be substantially related because it did not ban handguns
from places where the possibility of mayhem is most acute, such as schools, churches,
government buildings, protest gatherings, or establishments that serve alcohol. It does not
attempt to reduce accidents, as would a requirement that all permit applicants complete a safety
course.). So too, the FSA did not target any locations or individuals especially prone to misuse
of assault rifles of LCMsbut, instead, chose to ban the entire category altogether for all
citizens.
must still at least be substantially related, the FSA, however, burdens substantially more Second

Amendment rights by depriving all citizens in Maryland of the right to possess assault rifles

regardless of their potential for danger.121

V. CONCLUSION

In deciding Kolbe v. Hogan,122 the United States Court of Appeals for the Fourth Circuit

analogized the Second Amendment to Free Speech jurisprudence and determined that strict

scrutiny was the appropriate standard of review for regulations which infringed upon the core

valueself-defense within the homeof the Second Amendment.123 While specifically

avoiding application of the strict scrutiny analysis, the Fourth Circuit seemed poised to find the

statutes in question to be in violation of the Second Amendment.124

121
Similarly to Pertua, supra, the FSA appears to simply be a rationing system, It aims . . .
simply to reduce the total number of firearms carried[.] The solution, then, is not tailored to the
problem it is intended to solve. 742 F.3d at 1178.
122
813 F.3d 160 (4th Cir. 2016).
123
Id. at 184.
124
Id. Like most rights, the right secured by the Second Amendment is not unlimited. From
Blackstone through the 19th-century cases, commentators and courts routinely explained that the
right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott
333. For example, the majority of the 19th-century courts to consider the question held that
prohibitions on carrying concealed weapons were lawful under the Second Amendment or
state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251;
see generally 2 Kent *340, n 2; The American Students' Blackstone 84, n 11 (G. Chase ed.
1884). Although we do not undertake an exhaustive historical analysis today of the full scope of
the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of arms. Id. See also id. at n. 26
(We identify these presumptively lawful regulatory measures only as examples; our list does
not purport to be exhaustive.).
The limited guidance in Heller presupposes a level of scrutiny that would allow long-standing

regulations upon firearms to be upheld.125 All regulations upon firearms can be characterized as

substantially burdening self-defense in the home, as such, First Amendment jurisprudence is

an improper analogy for Second Amendment rights, and courts should await more guidance from

the United States Supreme Court before relying on an analytically-distinct area of law as a

proxy.126 Intermediate scrutiny is a rigorous standard of scrutiny, requiring far more than a

reasonable means-end fit, and would suffice to strike down the FSA as an unconstitutional

infringement on the Second Amendment, while maintaining the constitutionality of Hellers

presumptively constitutional regulations.127

The Fourth Circuit relied on an incorrect importation of First Amendment jurisprudence, and an

excessively lenient view of intermediate scrutiny in applying strict scrutiny to Marylands FSA.

As a result, they jeopardized the presumptively constitutional regulations listed in Heller. In the

absence of more specific guidance from the Supreme Court, Circuit Courts would better serve

the principles, and limitations, of Second Amendment protections by applying intermediate

scrutiny. A correct application of intermediate scrutiny would likely lead to the FSA being

struck down in violation of the Second Amendment for being over-inclusive in the means used to

promote public safety.

125
See supra notes 96-105 and accompanying text.
126
See supra notes 106-114 and accompanying text.
127
See supra notes 115-121 and accompanying text.