BREAKING NEWS! HUGE FEDERAL COURT VICTORY FOR 2A JUST RELEASED!

Added: 2026-05-23

[00:00:00]exciting breaking news in that I told you so. I want to illustrate the point that when Mark Smith speaks, it appears that people listen. Specifically, the United States Court of Appeals for the Fifth Circuit has embraced the views of the Four Boxes Diner in a huge constitutional litigation down there in the states of Louisiana, Texas, and Mississippi. But most importantly for you viewers of the Four Boxes Diner, you're going to see that when Mark Smith talks about things like, "Oh, I don't know legislative facts versus facts."

[00:00:28]Guess what? It sometimes appears in court documents. Let's break all this down because to make you the smartest person in the room, you have to be able to connect these dots at a high level because I expect more out of you viewers than simply screaming shall not be infringed. Let's talk about this exciting news out of the fifth circuit when we come right back.

[00:00:51]Hey folks, I'm Mark Smith, host of the form of Dina, proud American gun owner, constitutional attorney, member of the United States Supreme Court Barn, and I'm proud to say the top voice of the Second Amendment in America. Thank you.

[00:01:00]2025 and 2026 Gundy's awards. All right, folks. So, this is exciting news. Uh, we touched fingers with this a few days ago, but I want to hammer this home because this is such an important topic for the Second Amendment community. It is a hugely important topic for second amendment litigators and second amendment rights claimants because of this critical game that the anti-gun movement plays in conjunction with their handmaidadens in anti-gun courts. And that is to confuse the concepts of what is known as a legislative fact versus an adjudicative fact. And this is a super big deal, folks, because what's been going on is sort of courts that don't like the Second Amendment that are looking to make it super duper super duper expensive financially timewise and just delay the inevitable knocking out of these anti-gun laws. There is this attempt to do things like bring in expert witnesses to testify that the Second Amendment doesn't mean what it says, to talk about the history and tradition of the Second Amendment and other constitutional issues, and do all sorts of things to give these anti-gun lower courts an excuse to drag their feet. And one of the big things that I talked about uh at the Federalist Society back in November, and as you know, the Federalist Society National Lawyers Conference was a super big deal.

[00:02:20]Justice Barrett was there. Believe Justice Alo was there. Justice Scorches was there. A whole bunch of federal judges were there. Um, so a lot of people pay attention to this because this is really where the heart of the originalist movement is, which is to interpret the constitution the way it was written, the way it was understood, as opposed to embrace the notion of the living constitution, which is whatever we in the 21st century want the constitution to mean, we can just impose our wills because we are the black robed mystics known as the federal judiciary.

[00:02:53]And that's not how it's supposed to play. You're supposed to try to interpret any law, whether it be a contract or a constitution or statute, by looking at the words, understanding what those words meant, when they were adopted, when the contract was signed, and then to consider any surrounding history to the extent that is relevant to the issue at hand. So with that said, in November at the National Lawyers Convention of the Federal Society, I gave a very major speech in which I talked in detail about this critical distinction between legislative facts and adjudicative facts. And I point out this is a game that was being played because by declaring the meaning of the Second Amendment, the history of the Second Amendment, the history of our founding fathers as an adjudicative fact, as if it's really a question for a jury or for a judge to make a determination whether or not Mark went through the red light, Mark committed the murder, Mark committed the robbery, whatever it is, to treat the meaning of the Second Amendment, which is really a legal question about legal interpretation to be done by courts and judges as an adjudicative fact as if it's a question of whether or not she did it, she committed the crime, she committed the tort, whatever it is. That basically is unfair. Not only is it simply legally improper in constitutional litigation in constitutional interpretation, it's also entirely unfair to the Second Amendment movement because you're basically telling groups like the Second Amendment Foundation, like the Firearms Policy Coalition, like the NRA, like the California Rifle and Pistol Association, and so on and so on. You're basically telling all these groups like the gun owners of America that they have to spend all this money on not just lawyers, but they got to spend years litigating these cases and they got to bring in experts and they got to put on all this discovery and all this testimony and all this other hoie which you simply do not need to interpret the constitution. And I'm happy to report that the United States Court of Appeals for the Fifth Circuit covering the states of Texas, Louisiana, and Mississippi just came out with a huge ruling in Nathan versus Alamo where they reject or I should say they reject the notion of using experts and treating adjudicative facts as legislative facts.

[00:05:00]Meaning they say you should not be using facts in dispute about the parties or about what happened last week as a basis for slowing down or interpreting the meaning of the 1791 founding error constitution in the Nathan versus Alamo case. Uh that was a question of how to interpret the first amendment's establishment clause. But the methodology, the process of interpreting the first amendment is very similar to the second amendment with some caveats involving the first amendment which are bad for us which we can cover on another video but we don't need to cover it here and now. So to begin with I wanted just to show you because it's very important that you watching this channel just understand the importance of what I convey to you and how you're not the only ones listening. uh meaning there are other very important people understanding, learning from, uh getting educated about the sort of things I talk about on this channel. And I'm not saying I'm the cause of anything. I'm probably not. I'm guessing I'm not, right? But the point is, uh my ideas that get articulated on this channel and in my law review articles have a history of seeping in to American juristprudence involving the Second Amendment, which I think generally speaking from a person that likes the Second Amendment and likes the right to keep and bear arms, it's probably a positive. So with that said, I want to do a little comparison and comp contrast with what part of my speech in November and then we're going to see if you agree that what the fifth circuit court of appeal said in the Nathan case rings true or it should say rhymes with the comments that I was making. So let's start off with my ear first point I made in November at the Federalist Society National Lawyers Convention and then we'll see if there's any language or any suggestion that maybe the fifth circuit kind of agrees with that I had to say because they seem like they did. Check it out. Here's what I said in November.

[00:06:40]The main area where we're seeing games being played is the critical distinction that no one talks about because no one thinks about it. And that is the distinction between legislative facts and adjudicative facts. This is a big deal folks in the real world. Because by mislabeling legislative facts as adjudicative facts, lower courts are forcing second amendment rights claimants to engage in unnecessary and timeconsuming litigation processes. And this legislative fact versus adjudicative fact issue is extremely important because a lot of these bad gun control laws are in bad jurisdictions where the judges are kind of down on the second amendment. And of course, one of the critical ways that the anti-gun movement likes to and why I should say they like to conflate together improperly. So, adjudicative facts, which are really questions about the parties and what happened, like was I denied the ability to have a gun last week, right? Adjudicative facts versus legislative facts, which is, was the Bill of Rights adopted in the year of our Lord 1791? Did James Madison write the Constitution? You know what is the text of the second amendment? You know what was the purpose of the second amendment? What did the people think about the second amendment? What does Samuel Johnson the English lexographer define the right to keep and bear arms to mean if you read his dictionary?

[00:08:04]These are legislative facts about the meaning of a particular law in that case what does the second amendment which is a law a constitutional provision what does it mean? So the question is what happened in this case down there in the fifth circuit of Nathan versus Alamo and indeed the group that was trying to argue that a Texas law forbidding the posting of the ten commandments on public school walls just the posting of it nothing else just having it there to teach people about the foundation or one of the foundational documents of western civilization whether or not that violated the first amendment's establishment clause. Here's what the fifth circuit had to say and point out the argument against the Texas law.

[00:08:44]Check it out. Plaintist tradition argument is meritless. Plaintists offer their own historical argument. They contend that the Texas law violates the establishment clause because there is insufficient insufficient evidence of a tradition of public schools using the Ten Commandments or displaying them in a classroom. Listen carefully, folks. in support. They largely rely on the conclusions of their expert witness. And the fifth circuit goes on to say, "We reject this argument." That's right.

[00:09:14]They rejected it as well they should because again there was this conflation, improper confusion between adjudicative facts and legislative facts. And what's quite interesting is during my speech, I talk about a comment or quote from Judge Richard Pner of the United States Court of Appeals for the Seventh Circuit where I explain and I use his definitions for drawing this distinction. Here's what I say in my speech and then we'll compare it to see what the fifth circuit said just a few weeks ago. Check it out. In November, I explained to the Federalist Society that quote, "Judge Pner in the Seventh Circuit in Moore versus Madigan drew this distinction between the two."

[00:09:51]And again, this is often ignored in litigations, but it should not be. In his opinion in Mo versus Madigan, which is a second amendment challenge to an Illinois ban on guns in public, he offered this critical difference or distinction between legislative facts and adjudicative facts. Judge Pner wrote that legislative facts bear on the justification for the legislation.

[00:10:13]Adjudicative facts concern the conduct of the parties in the particular cases.

[00:10:17]Judge Pner went on to say that quote, "Only adjudicative facts are determined in trials and only legislative facts are relevant to the constitutionality of, in that case, the Illinois gun control law." Wow, that's powerful language from a handsome YouTuber with gray hair. The question is, does the fifth circuit agree? I don't know. Here's what they have to say in their case in Nathan.

[00:10:39]Tell me if it rhymes with what I had to say. The Nathan plaintiffs would rely on this practice to resolve fact issues about the Ten Commandments role in American history. But they confuse they confuse the kind of facts experts can help determine so-called adjudicative facts from facts that are decided by courts so-called legislative facts citing to a case called Moore versus Madigan which distinguishes between legislative facts which bear on the justification for legislation as distinct from facts concerning the conduct of the parties in a particular case i.eudicative adjudicative facts.

[00:11:14]And then it goes on to say, very interesting this, as Judge Pner has explained, only adjudicative facts are determined in trials and only legislative facts are relevant to the constitutionality of a challenge law.

[00:11:30]That sounds a little familiar, doesn't it? Now the other interesting thing of course is that I talk in detail about how if you look at modern Supreme Court litigation involving the second amendment start with Heler. There's no testifying experts that were used in Heler. Zero natada no testifying experts used in Helder in 2008 but the Supreme Court did sign that second amendment case. Likewise there's zero testifying second amendment experts in the McDonald case in 2010. And how many testifying experts involving the history of the Second Amendment did the US Supreme Court rely on in 2016 and decide the Cantano versus Massachusetts case? That would be zero. And how many testifying experts on the Second Amendment in the history of the Second Amendment did the US Supreme Court in 2022 rely upon in Bruin? That would be oh, I don't know.

[00:12:16]Zero. And how many testifying experts did the Supreme Court use to decide uh the meaning of the Second Amendment in Raheem? That would be zero. And how many testifying experts have we seen in the currently pending Wolford versus Lopez case out of Hawaii right now? And how many testifying experts on the Second Amendment did we see in the case of Hammani penning before the Supreme Court? That would be zero time zero.

[00:12:43]You do not need experts to litigate these constitutional questions. You do not need experts to interpret the Second Amendment. That is the job of judges and not experts. And that is exactly the point I made in November at the Federalist Society at the National Lawyers Convention attended to by thousands and thousands and thousands of lawyers and judges and everyone's attended this and this was my primary point during my big speech. So those are the points I made. The question is did the fifth circuit site to Heler brewing a McDonald? Yeah, they did. They exactly did. Here's what they had to say. See if it rings true to you. The fifth circuit in Nathan said the following quote, "What the founding generation understood as an establishment of religion is a legal question to be decided by a court, not a fact question to be decided by experts, no matter how credentialed. To be sure, courts must make a determined effort to grasp the relevant history bearing on that legal question. Citing to McDonald versus Chicago, Clarence Thomas concurring and then citing also to see generally Heler Heler versus DC.

[00:13:50]And then it drops a footnote and cites to none other than Nerpa versus Breuan.

[00:13:56]All good stuff. I could not agree more with the United States Court of Appeals for the Fifth Circuit down there in Texas and Louisiana and Mississippi. And I just want to summarize just make sure you all understand this is such a critical point because again, if you don't understand this distinction, you're going to spend a lot of money and a lot of time as a Second Amendment rights claimant, you know, spinning your wheels and burning through resources that you should have to do and should try to avoid doing because none of this is necessary for constitutional litigation. And I just want to point out at the end here that Justice Samuel Leto in his concurrence and Katano, you know, basically embraced to demonstrate the legality of stun guns and how common they are. He cites to a law review uh law review as well as some other information, none of which was provided in the form of testimony during the case of Katano. And yet that was a basis for Miss Kaitano in part to win her decision that ultimately got her conviction for illegally possessing a handgun in Massachusetts overthrown when that law against stun guns was kicked out of court. So here is what I had to say in November pointing out this exact point that Justice Alo with the support of Justice Thomas did in effectively effectively drew this distinction between adjudicatory facts and legislative facts in ruling for Miss Kaitano in favor of the Second Amendment in that case in 2016. Check it out. In November, I explained, quote, "If you want to have a great example of this, one need look no further than Justice Samuel Alo in his concurrence in the Katano case in 2016 where he talked about stun guns." And in that discussion of stun guns, did he ask for expert testimony and more testimony and more factf finding in the lower courts? No, he did not. Justice Alo literally cited to a Michigan case, cited to a law review article, cited to a 1980 a 1985 newspaper article because that is how legislative facts work.

[00:15:53]So again, it's important to understand the distinction between legislative and adjudicative facts because frankly the government defendants are always asking for adjudicative facts because it drags the case out for years when it does not need to. And don't take my word for it.

[00:16:08]Just look at how the Supreme Court has decided second amendment cases time and again. They use legislative facts. They don't need trials. They don't need experts. And they don't need discovery and the like. So there you have it, folks. Again, this is such an important point to make sure that people do not unnecessarily think they have to go out and get a bunch of experts to argue in the Second Amendment context. That is exactly the game that the anti-gun movement wants to play because bear in mind as a practical matter they control thousands and thousands of law professors and scholars and public health officials a and historians on all these college campuses which overwhelmingly skew to the anti-American side of the ledger. So, from the anti-gun point of view, not only does it force these cases to get drawn out and force the Second Amendment movement to spend a lot more money and time than they need to to ultimately win their cases, hopefully, it also plays to the advantage of the anti-gunners that control all these institutions, all these universities. So they can just cherrypick and grab any old professor off the shelf and who say essentially whatever needs to be said to advance the anti-gun cause because there's a lot more of them out there paid for than there are of people that support the second amendment in these sort of quote unquote credentialed universities and these credentialed institutions. So don't get suckered into playing this game of experts because there is a difference between legislative facts where you don't need experts and adjudicated facts where maybe you do.

[00:17:32]But again, when you're dealing with the meaning of the Second Amendment as applied to modern America, you're dealing with legislative facts, not adjudicative ones, make sure you understand this distinction. This is hugely important for anyone that's doing this in the real world. And uh there you have it. So, okay folks, hope you enjoyed today's episode. Make sure you follow me over there on X4box. Don't forget to subscribe with YouTube and a rum. I'll talk to you again real soon here at the fourboxes.

[00:17:55]>> Orders up. Table 2 A.