Transcription
Major breaking news as Supreme Court Justice Ketanji Brown Jackson has just made life easier for, drum roll, please, American gun owners. That's right. You're not going to believe the things she said in her dissent, which actually will come back and help dramatically American gun owners win Second Amendment challenges.
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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 proud to say the top voice of the Second Amendment in America. Thank you 2025 and 2026 Gun News Awards.
All right, folks, amazing news. Well, Supreme Court Justice Ketanji Brown Jackson, in her attempt to attack the majority in this Supreme Court decision in favor of the Second Amendment, the Supreme Court decision of Wolford versus Lopez, has actually just made life a lot easier for American gun owners to win Second Amendment challenges. She's made something crystal clear that, believe it or not, I, here on the Four Boxes Diner, have been hammering home and hammering home and hammering home. And that is the way to understand the interplay between step one of the Bruen methodology, which is to interpret and to apply the plain text of the Second Amendment to a set of conduct or whatever you want to do. I want to carry a gun. I want to possess a gun. I want to possess an AR-15, whatever it is. To analyze the plain text and then shift the burden to the government, where the anti-gunners never want the burden to be shifted to the government cuz once the burden shifts to the government, it's very difficult for the government to win, to justify a modern day gun control law, because the reality on the ground is, in 1791 with the Bill of Rights was adopted, when the Second was adopted, which is when you look to historical analog laws, if there are any, the reality is there's relatively few gun control laws at the time, other than those that focused on the misuse of guns and or someone who is a dangerous person to himself or to someone else.
In that dissent, which ran something like 30-some odd pages, she attacked the 18- or 19-page majority opinion written by Justice Samuel Alito, signed off by the six, the six Supreme Court justices. Justice Kagan wrote a very short separate dissent. And in that 6-3 win, that so-called vampire rule, which said that even with a concealed carry permit in Hawaii, you were not allowed to bring your gun concealed carry, even with your license, into places that were open for business, like a coffee shop or a restaurant, whatever, without getting the express express permission of the owners of those properties ahead of time. And of course, that was not really viable, and that was inconsistent with American law. That Hawaii basically flipped the default provision from you can go anywhere without a with your gun and a concealed carry permit unless someone first told you don't bring a gun here.
So, with that said, big win for the Second Amendment. But it turns out that as you know, I've explained there's two things that you always should care about when you read a Supreme Court decision. One is of course, who wins the case. But what's more important, more important for the Second Amendment community, is how they won. The methodology, the interpretive approach, the explanations that the Supreme Court gets into to explain why they ruled for the Wolford plaintiffs over the state of Hawaii. Because it is the methodology, it's the interpretations, it's the explanations found in the Supreme Court's opinion that are basically going to be used to guide lower courts for the next many, many years in determining and deciding future Second Amendment challenges to modern gun control laws.
We've talked about this before. When you engage in the Bruen methodology, which is really the Heller methodology and the Bruen methodology together, you start with the plain text of the Second Amendment. The analysis of plain text of the Second Amendment is a linguistics analysis. You take the words as they were written in 1791 and you interpret them using 1791 era or founding era dictionaries and other sources to understand what the ordinary American understood, the original public meaning of those words, what would the ordinary American understand the Second Amendment to have protected in 1791, and that is why you sometimes hear this reference to text as informed by history, cuz in my view what that says is that you interpret the text at the relevant time period of history. And of course, in 1791, that's when you're looking to define the terms the right to keep, the right to bear, what is an arm, who are the people, and so on and so on. All these terms of course have as a practical matter linguistically, meaning definitionally, have already been defined by the United States Supreme Court in the Heller case in 2008.
Now, with that said, the history, the history, and this is the key, and I'm going to make you very happy with this video, but you got to stick with me a little bit, but you're going to be very, very, very happy at the end of this video, and you're going to see how Supreme Court Ketanji Brown Jackson has just hugely helped every single Second Amendment rights claimant in America moving forward. Again, when the plain text of the Second Amendment, the right of the people to keep and bear arms shall not be infringed, when that language covers the conduct that you want to engage in or that you engage in, meaning I want to have a gun, I want to buy a gun, I want to shoot an AR-15, whatever it is, okay? Once that plain text covers that, if there's a modern-day gun control law that prevents you from doing that conduct or prevented you from doing that conduct, that modern-day gun control law is presumptively unconstitutional. It's presumptively unconstitutional. Think of it this way, if I charge you with a crime, you are presumed innocent. The burden of proof is on the government to prove beyond a reasonable doubt that you committed the crime, but you are presumed innocent. So, too, by analogy, when the plain text of the Second Amendment covers some sort of gun-related conduct, those modern day gun control laws that restrict that conduct are presumed to be illegal. They are presumed to be unconstitutional under the Second Amendment. And they are going to be found by a court to be unconstitutional unless and until the government that's being sued, the state law, the state government, the local government, the federal government, whoever it is, unless the government being sued can show that there's a historical tradition that is robust, that's well-representative, that's long-standing, that goes back to the time of the founding, that is consistent with and analogous to the modern day gun control law. And if the government cannot meet that burden, they lose the case.
Now, this is particularly important in the assault weapon, assault firearms, AR-15, AK-47 magazine fight because as I will explain before, and you're going to see why Ketanji Brown Jackson just won us the fight, but we're going to get to that in 1 second. As you know, the in common use test, the dangerous and unusual, all the sort of historical analysis derives at the historical level of the Bruen methodology, which means that the burden of proof is on the government to show, for example, that an AR-15 is dangerous and unusual, which means, because again it's at the historical level of the Bruen methodology, the burden of proof is on the government to show that an AR-15 is not in common use by Americans for lawful purposes. The burden of proof is on the government to show that suppressors are not in common use by Americans for lawful purposes. The burden is on the government to show that magazines that hold more than 10 rounds are not in common use by Americans for lawful purposes. The burden is on the government. And obviously, this is hugely valuable to us because the government cannot meet the burden in many of these cases.
And what's been going on in the lower courts in the 9th Circuit, in the 4th Circuit, in the 2nd Circuit, is they've been playing games. And what they've been doing, because they realize that if the burden shifts to the government in a bunch of gun control cases, and guess what? The government can't win. So, what's been going on is before that burden shifts to the government, they, the anti-gun courts, the anti-Second Amendment courts, are smuggling into the plain text of the Constitution historical analysis. Did you hear what I just said? These anti-gun lower courts are taking historical analysis like the in common use test, like dangerous and unusual, all these sorts of things that are based in the historical portion of the Bruen methodology, where the burden of proof is on the government, and they're smuggling it into the plain text analysis, where the burden of proof is on we, the Second Amendment community, where the burden of proof is on the Second Amendment rights claimant. But again, what's been going on is the history has been smuggled into the plain text. That is wrong, that is verboten. I've written about this extensively, not just in the Harvard Journal of Law and Public Policy. I wrote a huge article, like 70 pages in the Georgetown Journal of Law and Public Policy, explaining exactly this error, among other things. And I'm happy to report that the Supreme Court, in this Wolford versus Lopez case, the majority slammed the door shut on that. But the best part of the whole story is that Ketanji Brown Jackson, Supreme Court Justice, actually made it even clearer that if you try to use history and smuggle it into the plain text, that violates the Bruen methodology as articulated by the US Supreme Court.
But before we get to the wonderful language of Supreme Court Justice Ketanji Brown Jackson, let's just take a look at what the majority opinion said, explain exactly what I've taught you, which is the plain text analysis of the Second Amendment is a linguistics analysis, and the historical tradition of firearms regulation shifts the burden to the government to prove the history, and that occurs at part two, where the burden's on the government. So, here's what the Supreme Court had to say, explain exactly this in Wolford versus Lopez, and then we'll get to Ketanji Brown Jackson's agreement and vs. Lopez, and then we'll get to Ketanji Brown Jackson's agreement and clarification in support of the Second Amendment, believe it or not.
The Bruen analysis, we held, involves two steps. First, a court must determine whether the law before it clashes with the plain text of the Second Amendment's language. This inquiry entails three subsidiary subsidiary questions. First, does the law apply to the people, which is to say all members of the political community? Second, does it concern any form of arms, i.e., any weapon customarily used for offensive or defensive purposes? And third, does the law place any restrictions on either the keeping, i.e., the possession, or the bearing, i.e., the carrying of arms? Our opinion went on to explain the meaning of the Second Amendment's other key terms. The phrase to keep and bear arms, we held, signifies what its terms mean in ordinary uses, that is to have and carry arms. And arms, we explained, refers to implements used for offense or defense. Again, the plain text analysis involves definitions that are derived from dictionaries at the time of the founding.
If you look at the concurrence by Justice Amy Coney Barrett, she illustrates as she explains this in great detail, explaining that you never, ever, ever, ever smuggle history into the plain text analysis of the Bruen methodology, which is great for us because when you smuggle history in, it gives the anti-gunners the chance to win. It's a lot easier for them to win, and it's completely wrong, because again, once you start engaging in historical analysis of historical analogs and historical laws, you're at the historical level of the Bruen methodology, and that means the burden is on the government and not on we, the Second Amendment community. Here's what Justice Barrett says in footnote number one of her concurrence in Wulf vs. Lopez, it's saying exactly what I've taught you here at the Four Boxes Diner. Check it out. Bingo. Make cannot be clear.
But it actually gets clearer because in her dissent, Supreme Court Justice Ketanji Brown Jackson is very upset about this and basically says that what the Supreme Court has just done in Hamani is made it a lot easier for Second Amendment rights claimants to demonstrate that a modern gun control law is covered by the plain text of the Second Amendment, thereby shifting the burden to the government to really have to do all the work to justify the modern gun control law, which is exactly right because if the plain text is implicated, it means the law is presumptively unconstitutional. And unless the government can come forth with clear evidence, like for example, you can't commit murder with a gun, then the government should lose and the modern gun control law should go bye-bye.
So here's what Justice Brown Jackson has to say, bemoaning the fact, but in fact, if you look at what she writes, it's fantastic for us in the Second Amendment community because she clarifies what she thinks the Supreme Court majority means, and that means all these lower courts that hate the Second Amendment and are messing around with this game of smuggling history into the plain text, and that means courts like the Second Circuit in New York City, the Seventh Circuit in Chicago, the Ninth Circuit in San Francisco, the Fourth Circuit in Virginia and Maryland, they are all doing it wrong, and they have been told they are doing it wrong according to the Supreme Court and specifically according to, believe it or not, Supreme Court Justice Ketanji Brown Jackson.
In her dissent, which I love, "Worse, the majority's new methodology, which is not new by the way, but set that issue aside, worse, the majority's new methodology is a one-way ratchet and inevitably works only to the benefit of armed carry by removing any real burden of proof on gun owners at step one. The majority simply equates the ability to carry a gun with the right to carry anywhere and everywhere. Because of that, it then assumes that any impediment to carrying qualifies as a burden on the right. The upshot of the majority's view of Bruen's first step is thus, listen carefully, any law that regulates the carrying of firearms is presumptively unconstitutional." Exactly right. Oh my God, Supreme Court Justice Ketanji Brown Jackson and her clerks are apparently watching the Four Boxes Diner because that's exactly how you do it. Once the plain text implicated, the burden shifted, government to do the history, you do not do any historical analysis of historical laws or historical analogs or any of that stuff at the plain text level, only at step two where the burden is on the government.
Now, Supreme Court Justice Ketanji Brown Jackson in her dissent continues on with board game, great language that reaffirms what I've been writing about for several years and talking and teaching you here on the Four Boxes Diner, which is 100% consistent with what the Supreme Court has said, not just in the Wolford case, but in all the other cases as well. Here, check out the next thing she says, proving the point for the Second Amendment. Check it out.
"Instead of applying a threshold criterion asking whether the challengers have shown that the plain text of the Second Amendment, which codified a pre-existing right to carry, covers conduct that the challenged law restricts. The majority essentially directs courts, directs courts, as lower courts, to start by simply asking whether a gun owner cannot do what she wants with her firearm." Exactly. The majority thereby eliminates step one's effectiveness as a means of identifying gun-related laws that impinge on rights secured around the Second Amendment. This move represents a significant expansion, a significant expansion that, as applied here, obscures what Bruen's actual step one analysis reveals."
I love it. I love it. Hear what she just said? She literally said that this eliminates step one's effectiveness from her perspective. So, what she's essentially saying is once the plain text, as defined by 1791 dictionaries, covers the conduct you want to engage in with arms, the presumption is that the law that prevents you from doing that is unconstitutional under the Second Amendment. That is 100% correct. The Supreme Court 100% with what we teach here at the Four Boxes Diner. It 100% what is it said over and over and over again. It is 100% consistent with footnote number one in Amy Coney Barrett, Justice Barrett's concurrence here in Wolford and is exactly what Supreme Court, Supreme Court Justice Ketanji Brown Jackson is reaffirming, which is reaffirming something that is very good for the Second Amendment.
But then she keeps doubling down and tripling down in our favor. Check out the next thing she has to say, proving exactly the point you've learned here at the Four Boxes Diner. Check this one out now.
"Rather than respond to Hawaii's evidence that the right to exclude resolves this case at step one of Bruen, the majority moves the goal posts. It announces that at step one, courts must look only to the plain text of the Second Amendment devoid of any historical understanding. And it rejects Hawaii's attempts to clarify the meaning of the plain text as it relates to the relevant conduct, carrying a firearm onto private property without express consent. History, according to the majority of the Supreme Court, is out of place at Bruen's first step. Instead, the majority seeks to confine history to Bruen's second step."
Did you hear that, folks? The majority seeks to confine history to Bruen's second step when the government must identify a history and tradition that relevantly limits the scope of the Second Amendment right. This shift is surprising not only as a matter of precedent, but also in light of the majority's chosen methodology, chosen methodology. Oh my god, I am in love with Supreme Court Justice Ketanji Brown Jackson. She's laid it out better than anything I've ever said on the Four Boxes Diner or in any of my scholarship that explains this distinction between the plain text of the Second Amendment, the Bruen sister to and then any any historical analysis of historical laws to justify the law occurs at plane at at at at the step two of the Bruen methodology where the burden is on the government, and no one has said it better, more clearly, reaffirming what I have said, what the Supreme Court has said, what Justice Barrett, Justice Barrett has said, and so on and so on, that what Supreme Court Justice Ketanji Brown Jackson just did in her dissent in this case of Wolford.
And I would say if I were litigating cases involving Second Amendment in the Ninth Circuit, in the Fourth Circuit, in the Second Circuit, in the Tenth Circuit, in the Fourth Circuit, it doesn't matter, right? Anywhere in America, in any lower court, I would be quoting verbatim Ketanji Brown Jackson's dissent to say, "See, she's telling you what the majority means to the extent you're confused by this distinction between the plain text linguistic analysis and the burn shift in the government to do the history to the extent you're trying to smuggle, let's say, I don't know, the in common use test into the plain text. If you're trying to smuggle dangerous and unusual from the Arms Ban situation into the plain text, you're doing it completely wrong, and don't trust Mark Smith. Don't trust the Supreme Court majority. Trust your friend Justice Ketanji Brown Jackson and Justice Sotomayor, who signed on to the dissent, because they know best and they're telling you that the Supreme Court majority is making it clear that history cannot be smuggled into the plain text analysis, and that is super important for the Second Amendment community because the plain text analysis, all you need to do, as I've explained before, is just pointing out that what you want to do is involving a bearable gun, you're an American citizen, and it affects your ability to keep and to carry the gun, and that's all you need to do. Then the burden shifts with a gun control law that restricts your ability to do what you want to do. The burden shifts to the government to do the history, and Supreme Court Justice Ketanji Brown Jackson has just conceded the point that I've been making for years, and this, I can assure you, is going to be used in countless cases moving forward in support of the Second Amendment.
All right, folks, so I hope this was not too geeky. I hope you're very happy. If you're a litigator, I'm sure you're smiling at this point cuz you know what I've just pointed out here and why it's so good for us. Uh with that said, I thank you all for tuning in. Uh make sure you follow me over there at X @WarEggman. Don't forget to subscribe both YouTube and to Rumble, and I look forward to talking to all of you again real soon here. I'm the War Eggman.
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