Transcription
Major breaking news as the United States Court of Appeals for the Fifth Circuit, out of Mississippi, Louisiana, and yes, Texas, has just issued a huge ruling upholding a law in Texas that says displaying the Ten Commandments is okie dokie and does not violate the First Amendment's Establishment Clause.
Now, this is a super big deal, folks, for the Second Amendment because the methodology, the definitions, the approaches, the thinking that went into this major decision by the onbunk court, the entire court of active judges for the Fifth Circuit down there in those states, has just basically followed perfectly the Bruin-Heller methodology for interpreting the Constitution and applying it to modern-day controversies. So again, even though this case involves the Establishment Clause and the First Amendment, there's a lot of good stuff here that will support future claims of our right to keep and bear arms. Let's get geeky when we come right back.
Hey folks, I'm Mark Smith, host of the Four Boxes Diner, proud American gun owner, constitutional attorney, member of the United States Supreme Court Bar, and I'm proud to say the top voice of the Second Amendment in America. Thank you. 2025 and 2026 Gundy's Awards.
All right, folks. This is a big deal. Big deal. You probably have not picked up on this, but it's a huge deal for our Second Amendment right to keep and bear arms. And that is this huge decision by the United States Court of Appeals on bonk. On bonk, which means that every single active judge on the Fifth Circuit down there in Texas, Louisiana, and Mississippi all got together to decide whether a law passed by the Texas legislature that says that every public school has to have a copy of the Ten Commandments on the wall. They don't have to be taught. They don't have to be preached or anything like that. It's just displaying the Ten Commandments as part of the educational curriculum because, frankly, Western civilization derives largely from the Ten Commandments. Needless to say, certain people brought this lawsuit claiming that this violated the First Amendment's Establishment Clause.
Now, just to jog your memory, the First Amendment talks about the right to free speech, the right to a free press, the right to assembly, but it also has the following language. It specifically says that Congress shall make no law respecting respecting the establishment of religion. So to basically figure out whether or not a modern law violates the Establishment of Religion Clause or the Establishment Clause, one has to interpret the First Amendment, that relevant language. And what is so important and great for the Second Amendment is that the Fifth Circuit basically applied the Bruin-Heller methodology of looking at the plain text, defining the plain text in the right time period, meaning the founding era, and then applying it to the modern controversy, i.e., the modern Texas law that says every classroom has to have a copy of the Ten Commandments.
Now, before we explain why the methodology that was used by the Fifth Circuit is so good for the Second Amendment, I want to just talk about what the case is. Again, the question is, is simply requiring government schools to post a copy of the Ten Commandments on the walls sufficient to violate the First Amendment's Establishment Clause that says one shall not, the government may not establish a religion, which at the time of the founding, of course, was, we did not want a federal Church of England. England. We did not want everyone in America to have to be a Catholic to get a job or to be a Protestant or whatever it was.
So before we get into the methodology and talk about that, I just want to tell you what the court found. Basically, the Fifth Circuit looked at founding era history, at 1791 and that entire founding era, to try to understand what was the original public meaning. Meaning, what did the Americans that enacted and ratified the Bill of Rights, which included not just the Second Amendment right to keep and bear arms, but at the exact same time, they ratified and effectuated the rest of the Bill of Rights, including the First Amendment, including as part of the First Amendment, the no establishment of religion by government clause. Again, we did not want a national religion because all those countries in Europe had national religions, and they had nothing but like religious strife.
For example, when it came to the right to keep and bear arms in England in the late 17th century, it specifically said that Protestants had a right to keep and bear arms in England, but Catholics did not. We in the United States did not want to get into these religious conflicts that gave rise to religious wars like we saw in Europe. So our Founding Fathers here in the United States wanted to make sure that there was not going to be a fight about religion. So they did two things. They said no establishment of religion by the federal government, meaning the federal government could not be, say, we're going to be a Catholic country. You could not do that. That was why they stopped the establishment of religion. And also that you could freely exercise, you could freely exercise religion here in the United States, and the government could not stop you.
Now, with that said, what the, what, what the Fifth Circuit did here is they looked at all this historical evidence, which we'll get to in a moment, and they concluded that at the time of the founding, this is what everyone understood the establishment of religion to mean. Specifically, it was a version of the Anglican Church or the Church of England where the government and the church were intertwined. Here is what they had to say in concluding that this is what establishment means, and then they applied it to the current law, concluding that the current law did not violate the meaning, the founding era meaning of establishment of religion.
So here's what establishment, according to the Fifth Circuit. By the 18th century, English law recognized the Church of England as a legally established institution of civil government. According to Blackstone, the church had become an integral part of the public legal system, whose rights, privileges, and authority were established by statute and enforced by civil authority. The result was state control, state control over religious belief and practice, with dissent punished financially, politically, and criminally. In the minds of the founding era Americans, bing, bing, bing, founding era, right? In the minds of founding era Americans, this was a paradigm of religious establishment.
And then the Fifth Circuit goes on to say that what's key to the establishment of religion is that those laws were conditioning civil or political privileges on your religious belief or your religious affiliation. Laws compelling church attendance to tithes, laws interfering with church doctrine, governance, or administration, and laws authorizing a religious group to perform vital civic functions for the state.
Now, that's what the Fifth Circuit figured out. The question is, how do they figure it out? Remember, I've explained to you repeatedly that to be the best possible advocate for the Second Amendment, it's not just important to know which party wins the case. That's important, of course, but it's equally, if not more important, to understand the thinking, the rationale, the reasoning, the methodology that is used to figure out how you decide the case. And here, the fact that the Fifth Circuit embraced originalism, they look to founding era history to try to give meaning to the words of the 1791 First Amendment text, is exactly the sort of methodology that is used when you try to give meaning to the scope of the Second Amendment text in the context of Second Amendment litigations.
So specifically, it's very important, for example, that when you try to interpret the Bill of Rights, you go back to the founding era because, as you know, when it comes to the gun issue, we do not want the anti-gunners to be able to benefit from going to the late 19th century to try to use all those Black Code anti-gun laws that were enacted after the Civil War because that has no meaning. It doesn't give any shed any light. It doesn't shed any light on the meaning of the Bill of Rights, including the Second Amendment, when it was adopted in 1791, like 100 years earlier. And that is exactly the rationale that the Fifth Circuit embraced here in this Establishment Clause case, focusing on the founding era, which is what we in the Second Amendment community want federal courts to be doing.
And here is what the Fifth Circuit had to say about embracing founding era law, founding era history, which we 100% want in the Second Amendment space. "If a modern law is challenged under the First Amendment's Establishment Clause, courts must test that law against what the founding, what the founding generation would have regarded as an establishment of religion. This is a familiar task. Courts often decide whether modern practices fall within the original public meaning of constitutional phrases. For instance, the phrase 'search and seizure' in the Fourth Amendment. For instance, listen carefully, the phrase 'keep and bear arms' in the Second Amendment." This is what you do. You look to the original public meaning, i.e., 1791. Exactly right. We want 1791 and the founding era to be the time period that people look for, for example, to figure out if there's a historical tradition of firearms regulation because in the 18th century, the relatively few gun laws other than you cannot misuse guns. In the late 19th century, you have more gun control laws, largely because they're trying to disarm the blacks, the freed African-American slaves.
Now, remember, if you look at the Heller decision in in 2008, they defined every word in the Second Amendment. But how did they do it? They used founding era dictionaries. And there are two very important founding era dictionaries that were used in Heller and by extension in Bruin, which reaffirmed Heller. And that is they look to the English lexicographer Samuel Johnson, who was the English guy at Oxford that did the dictionary of English English. And then they look to Noah Webster, who was the American English guy who did the dictionary on American English. Noah Webster. And what does the Fifth Circuit rely upon here to define what it means to establish a religion, to create an establishment? They rely on, you guessed it, Samuel Johnson's dictionary and Noah Webster's dictionary. Do you see how all this all comes full circle?
Let's turn and see what the Fifth Circuit has to say about Mr. Johnson and Mr. Webster in the context of this Establishment Clause fight involving the First Amendment. "The key phrase 'an establishment of religion' was readily understandable to founding era citizens," citing to, drum roll please, citing to District of Columbia v. Heller for the proposition that relying on a phrase's normal meaning known to ordinary citizens in the founding generation is how you do it. And then the Fifth Circuit goes on to say, "This is what founding era Americans meant by the establishments of religion. That meaning is reflected in contemporary dictionaries." Contemporary dictionaries, folks. And which are those contemporary dictionaries at the time of the founding? Here's what they say. For instance, Samuel Johnson referred to the church as being established in all its forms by an ordinance of the Lords of Commons, signed to Samuel Johnson's Dictionary of the English Language in 1773. And then it goes on in footnote number 14 to say, "See also the definition of establishment by, drum roll please, Noah Webster in the American Dictionary of the English Language in the year of our Lord 1828."
Do you see how it all works, folks? Do you see why when I say there's major breaking news, and some people say, "I don't understand why this is major breaking news involving the Second Amendment, Mark. It's some random case somewhere." Because it is. And here's a perfect example. This decision in this case of Nathan v. Alamo Heights by the Fifth Circuit does the methodology of originalism, which means you try to figure out the original public meaning of the Bill of Rights and then you apply it. If originalism wins, the Second Amendment wins. If 1791 is the relevant time period to interpret the Bill of Rights, the Second Amendment wins. All these things pay off big time for our fundamental rights, not just the Second Amendment rights, but all of them in the Bill of Rights.
And by the way, the court specifically said in this case of Nathan that there's nothing about simply displaying the Ten Commandments on the wall that speaks to the issue of establishing a religion, and therefore displaying these Ten Commandments does not violate the First Amendment in any respect. Here's what the court had to say in its conclusion in this case. "Plaintiffs have not identified a shred, a shred of founding era evidence equating the government's use of religious texts, displays, or symbols with an establishment of religion. To the contrary, it appears that no one ever claimed at the founding that the display of religious symbols was a form of religious establishment." This is big, folks, right? Because remember what I explained to you, and I wrote this in the Harvard, uh, not just the Harvard Journal of Law and Public Policy, but also the Georgetown Journal of Law and Public Policy. If, if, if the anti-gunners have no historical evidence at the time of the founding of some sort of gun control law, they lose. That silence means they lose because if you don't have evidence of a historical tradition of regulation, if you don't actually have regulations, you cannot have a tradition of regulations because there are no regulations. You can't have a tradition from nothing.
And that is exactly what the Fifth Circuit just said here. They said there's no founding era evidence where anyone in the American public would conclude that simply displaying a religious symbol would somehow constitute an establishment of a religion by the government, i.e., creating a Church of England here in America just by posting something that has some religious meaning, religious significance. It's simply not enough. And that is exactly my point. That, that rationale, those reasonings that we see in this case is the same sort of thing that bolsters how to interpret the Second Amendment. And as you know, the way to interpret the Second Amendment is as important for protecting our rights as who wins a particular case. You see how all this comes together, folks? When I say something's important, you may not understand why, but then I tie it all up. This illustrates the point.
And last but not least, and this is something that I've really been hammering home on, and many people in the Second Amendment did not completely understand this, and now I think they do. And now you can start to see my views coming through in these major court decisions. And that is this: You do not need experts. You do not need expert historians to decide constitutional questions. Period. Full stop. In fact, in the lower court, in this case of Nathan, the lower court used an expert to basically decide what violated the First Amendment, and the district court embraced the expert's views. And the Fifth Circuit said, "You're not allowed to use experts. You can consider expert opinions. You can read articles. You can do other things, but again, at the end of the day, you're the judge to determine the legal meaning of, let's say, the Second Amendment or the legal meaning of the First Amendment."
Here's what the Fifth Circuit had to say in rejecting the notion that courts need experts of any sort when it comes to interpreting the Bill of Rights. Check it out. "One final note, in resolving this claim, the district court engaged in a practice one seldom sees in constitutional adjudication. It allowed for experts in religion and legal history to opine whether there was a tradition of using the commandments in American schools. This practice is mistaken. An expert may never render conclusions of law. Yet what appears, or yet that appears to be what the district court let happen here. Those experts are law professors who write books and law review articles, but so do other law professors. As judges, we read their work and may find it helpful. We also review the historical sources ourselves. What we cannot do, however, is outsource to experts our Article III duty to decide questions of law."
And why is this the case? Because experts can be used for adjudicative facts, but not for legislative facts. And I've talked about this at the Federalist Society. I've talked about this with judges. And a lot of people are now getting it. And I'm now happy to see that the U.S. Court of Appeals for the Fifth Circuit is totally on board and understands this distinction between legislative facts, which is basically facts that go into the history of some legislative text or some legislation or some court case or some historical meaning, versus adjudicative facts. Adjudicative facts deal with what did the parties do. So, for example, it is a legislative fact that we fought the American Revolution after the shot heard around the world at Lexington Green, and that gave rise to the Second Amendment. That is a fact. It is a historical fact. Yes. But you don't, it's not an adjudicative fact, adjudicative fact that you would use a jury for, for example. You would use a jury for what the parties did or didn't do. Did Mark commit the murder? Did Mark go through the red light? Did Mark punch the person? Did Mark, you know, breach the contract or whatever it is? You see what I'm saying? Those are questions about the parties. Those are adjudicative facts. Those are different than legislative facts that says, for example, I don't know, the assassinations in the 1960s gave rise to the Gun Control Act of 1968. Those are historical facts. Yes, but they're legislative facts, not adjudicative facts. And when you're dealing with the meaning of the Constitution and all the history that goes into the meaning of the First Amendment or the meaning of the Second Amendment, all that history deals with legislative facts that you do not use experts for.
Which is why, if you look at Heller, Bruin, Caetano, Rehnquist, McDonald, you get the point. How many testifying experts were used by the U.S. Supreme Court in those Second Amendment cases? The answer is zero. Not a single testifying expert was used in any of those Second Amendment cases. And the Fifth Circuit obviously has gotten the hint. And here's what they have to say. Point out this exact point that I've been making for like several years now. The difference between adjudicative facts and legislative facts and how courts should not confuse the two. Check it out. "Plaintiffs would rely on this practice of experts to resolve fact issues about the Ten Commandments' role in American history. But they confuse the kind of facts experts can help determine, so-called adjudicative facts, from the facts that are decided by courts, so-called legislative facts versus Madigan. Distinguishing legislative facts which bear on the justification for legislation as distinct from facts concerning the conduct of parties in a particular case."
So there you have it, folks. So again, you can see how the Heller and Bruin methodology, the proper way to interpret the Second Amendment, is seeping into the bloodstream of American jurisprudence in all respects. And that's why I teach you on this channel to understand other areas of American law because other areas of American law have a way to seep into different areas. And that's why I often cover cases that are not specific to the Second Amendment. And I point out they're very important for our right to keep and bear arms because we have to protect our right to keep and bear arms not just by the proper interpretation of the Second Amendment, but also by protecting other aspects of the Constitution and other areas of American law. And that's why we have to cover these things.
But here's a perfect example of what I teach you involving the Second Amendment basically has a huge influence on the First Amendment, and what's discussed in context of, in the context of this First Amendment will have a huge influence on the Second Amendment. So you see how it all works together? It is a spiderweb where if you move a single strand of the web, the entire web moves. And that is what we do here at the Four Boxes Diner to talk about major breaking news involving a particular strand of the spiderweb and how it moves the entire web. It may not be obvious to many at the start, but at the end of every video, it should be obvious as to why the video was done and why it was important and how it helps all of us protect all American freedoms, including but not limited to our right to keep and bear arms.
All right, folks. Hope this wasn't too nerdy for you. I appreciate your support. Uh, make sure you follow me over there on X, @FourBoxesDiner. Don't forget to subscribe, both the YouTube and Rumble, and I'll talk to you all again real soon here at the Four Boxes Diner. >> Orders up. Table 2A.