Bruen’s Text-and-History Test Spreads Beyond the Second Amendment

“The U.S. Court of Appeals just took the Heller and Bruen playbook — founding-era text, founding-era dictionaries, founding-era silence — and ran it through a First Amendment case. Every yard they gained for the Establishment Clause is a yard also banked for the Second Amendment.” – Professor Mark W. Smith, Four Boxes Diner

The United States Court of Appeals for the Fifth Circuit has handed down an en banc decision in Nathan v. Alamo Heights Independent School District, No. 25-50695 (5th Cir. Apr. 21, 2026), upholding a Texas law requiring public-school classrooms to display a poster of the Ten Commandments. The 9–8 majority, written by Judge Stuart Kyle Duncan, held that the Texas law does not violate the First Amendment’s Establishment Clause. That alone is a big deal. But more importantly for Second Amendment supporters, the en banc court embraced the “text and history” methodology used by the Supreme Court in its Second Amendment decisions.

In other words, the high court’s Second Amendment jurisprudence is being injected more and more into the bloodstream of American constitutional law.

A Bruen-Style Inquiry, Just Pointed at the First Amendment

The Fifth Circuit did exactly what District of Columbia v. Heller, 554 U.S. 570 (2008), and New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), tell courts to do with the Second Amendment — only this time the target was the First Amendment’s Establishment Clause. The majority started with the constitutional text, locked in the founding era (1791) as the relevant time period, and asked what an ordinary American at ratification would have understood the words to mean.

Judge Duncan’s majority opinion put it this way: “If a modern law is challenged under the Establishment Clause, courts must test that law against what the founding generation would have regarded as an establishment of religion. … That is a familiar task. Courts often decide whether modern practices fall within the original public meaning of constitutional phrases — for instance, ‘search and seizure,’ ‘keep and bear arms,’ ‘Recess of the Senate,’ or ‘Officers of the United States.’”

Read that again. The en banc Fifth Circuit just dropped “keep and bear arms” into the same originalist sentence as “search and seizure” — treating the Second Amendment as one more constitutional phrase whose meaning was fixed when the Bill of Rights was adopted in 1791. That is the methodological lockstep our right to self-defense needs.

The Dictionaries Heller Used

Further proof of how Second Amendment precedents are going mainstream can be found in Nathan’s footnotes. To define what “an establishment of religion” meant in 1791, the Fifth Circuit reached for two founding-era dictionaries: Samuel Johnson’s A Dictionary of the English Language (4th ed. 1773) and Noah Webster’s American Dictionary of the English Language (1828) — the exact same two dictionaries Justice Antonin Scalia leaned on in Heller to define “keep,” “bear,” and “arms.” Footnote 14 of the Nathan opinion cites Noah Webster by name. The court even pulled William Blackstone’s Commentaries on the Laws of England (another source cited by SCOTUS in Heller) off the shelf to explain what an established church looked like in pre-revolutionary England.

When a federal court deploys Johnson, Webster, and Blackstone to interpret the meaning of the 1791 Bill of Rights, the anti-gun lobby’s favorite cheat code — relying on late-19th-century Black Codes and post-Reconstruction disarmament statutes — gets harder to play.

Justice Joseph Story, Across the Hall From Himself

This is the part I most want you to see. The Fifth Circuit’s majority quotes Joseph Story’s Commentaries on the Constitution § 1874 (1833): “An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.”

Joseph Story is not a random treatise writer. He is one of the most famous Supreme Court justices of all time. Story was appointed to the Supreme Court by President James Madison — the architect of the Constitution itself — and confirmed at age 32, making him the youngest justice ever to sit on the Court. And the same Joseph Story, in the same 1833 Commentaries, wrote the sentence every Second Amendment lawyer should know by heart: “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers.”

One book. One author. One founding-era authoritative voice for interpreting the Bill of Rights, including the Second Amendment.

The End of the Myth of the “Expert Historian” in Constitutional Litigation

Personally, I intend to spike the ball here because the Fifth Circuit found that testifying “expert” historians should not be viewed as authoritative in legal fights over constitutional meaning. In my article in the Georgetown Journal of Law & Public Policy, I explain in detail why it is improper for courts to outsource to “expert historians” their decisions about the meaning of the Second Amendment. And I am happy to report that the Fifth Circuit agrees with me!

The district court in Nathan had let hired law professors testify about whether displaying the Ten Commandments was historically an “establishment.” The Fifth Circuit shut that down, explaining the difference between “legislative facts” and “adjudicative facts.” Legislative facts are historical facts relevant to the legal question about what a law, such as the Second Amendment, means. Adjudicative facts are facts about the parties themselves for juries to decide, such as “Did Mark run the red light?” or “Did Mark rob the bank?”

By finding that historical questions about the meaning of the First Amendment could not be decided by just asking a historian, the Fifth Circuit made clear that testifying experts are unnecessary for interpreting and applying the Constitution. This is borne out by Supreme Court precedent, given that no testifying experts were used in any modern Second Amendment cases from Heller to McDonald to Bruen to Caetano to Rahimi, and so on.

The Spider Web

Here is why Second Amendment supporters must understand all areas of constitutional law, including the First Amendment.

Constitutional methodology is a spider web — when one strand moves, the whole web moves.

The Fifth Circuit just yanked the originalism strand hard, and every other strand, including the Second Amendment strand, moved with it. Nathan v. Alamo Heights is likely going to the Supreme Court. When it gets there, it will land on a bench whose 6–3 conservative majority handed down Bruen and Rahimi and whose precedent shelf already holds Heller, McDonald, and Caetano. The Bruen “text and history” methodology is consolidating.

The road into 1791 is becoming the only road for constitutional interpretation, and supporters of the right to bear arms should rejoice at this trend.

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About Mark W Smith

Constitutional attorney and bestselling author Mark W. Smith, host of the Four Boxes Diner Second Amendment channel on YouTube, is a member of the U.S. Supreme Court Bar. His Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the Supreme Court in NYSRPA v. Bruen and in U.S. v. Rahimi.

His most recent book is DISARMED: What the Ukraine War Teaches Americans about the Right to Bear Arms.