Attorney Mark W. Smith, host of The Four Boxes Diner, says lower courts are “playing games” with Second Amendment cases by blurring the line between legislative facts and adjudicative facts. He argues this confusion isn’t accidental – it buys time for governments to keep gun restrictions in force.
Smith’s point is simple. Questions about what the Constitution means are legal questions grounded in history – legislative facts – not the kind of party-specific, witness-driven details you sort out at trial.
And yet, he says, judges and government lawyers keep insisting on trials, discovery, and experts anyway.
Legislative vs. Adjudicative: Why the Distinction Drives the Timeline
Smith defines legislative facts as the historical, textual, and contextual materials courts use to interpret the Constitution and laws: when the Second Amendment was adopted, what its words meant, what the Founders wrote, and how the tradition of firearm regulation actually looked.
You don’t need depositions to confirm when 1791 happened or whether the Federalist Papers exist. You read and analyze.
Adjudicative facts, by contrast, are the case-specific questions for a trial court: Does the plaintiff live in the state? Is she 19 or 21? Who ran the red light? Those get proven through witnesses, exhibits, and credibility determinations.
Smith says anti-gun defendants are trying to treat constitutional meaning (legislative facts) as if it were a fender-bender (adjudicative facts).
Why? Because trials take time and money, and delay keeps the gun law on the books in the meantime.
The Strategy Smith Sees: Slow It Down, Price It Out
Smith emphasizes a basic dynamic of civil litigation. Plaintiffs who claim their rights are being violated want cases resolved quickly. Governments defending a law often prefer “super duper slow.”
That’s especially true, Smith argues, in 2A cases. While briefs are filed and experts are hired, the challenged law remains in effect. Rights are chilled. Purchases are blocked. Carry permits are constrained.
Force the plaintiffs to bleed money on expert reports and depositions, he says, and you weaken the will – and the wallets – of the people trying to vindicate constitutional rights.
As Smith frames it, that’s not neutral case management. It’s the litigation strategy.
Supreme Court Examples: No Trial Needed to Decide 2A Law
To show how these cases should be handled, Smith points to recent Supreme Court landmarks.
He notes that District of Columbia v. Heller (2008), McDonald v. Chicago (2010), Caetano v. Massachusetts (2016), New York State Rifle & Pistol Association v. Bruen (2022), and United States v. Rahimi (2024) were decided without trial-level fact-finding on the constitutional question. The Court answered the legal issues using text and history – legislative facts – not witness testimony.
Smith highlights two telling episodes. In Heller, he says then-Solicitor General Paul Clement urged the Court to send the case back for more fact-finding about handguns. The Court declined and decided the constitutional issue straight up.
Similarly in Bruen, Justice Breyer’s dissent favored remanding for “time-consuming fact-finding.” The majority again chose to decide the legal question from the historical record without a trial.
Smith’s takeaway is blunt: If the Supreme Court can resolve 2A meaning using legislative facts alone, trial courts shouldn’t force plaintiffs to run a mile of adjudicative hurdles to reach the same legal finish line.
How Mislabeling Facts Warps Appeals
Smith flags another downstream effect. When a trial court treats legislative questions as adjudicative issues, it builds a “record” of experts and credibility calls that appellate courts are then pressured to defer to.
That’s backwards, he says. Appellate courts review questions of constitutional meaning de novo – fresh, without deference – because those are legislative facts.
But if the lower court papers the case with expert battles as if it were a medical-malpractice suit, the appeal risks turning into a fight over who testified better instead of what the Second Amendment means. That, in Smith’s view, is a feature, not a bug, for those who want to preserve gun restrictions.
Under Bruen, Smith explains, the analysis is supposed to be straightforward: if the Second Amendment’s plain text covers the conduct, the burden shifts to the government to show a relevant, well-established historical analogue for the modern restriction.
That’s a history exercise, not a jury trial. It involves comparing statutes, treatises, enforcement patterns, and founding-era practices – not calling modern policy experts to the stand to opine on crime trends.
Smith argues that dragging in social-science debates and expert declarations about modern public safety doesn’t just slow things down – it misapplies Bruen, which specifically rejected interest-balancing.
Where Smith Says Lower Courts Go Off the Rails
Smith’s critique is specific. He says too many judges:
- Demand discovery and expert reports on “history,” as if historians must testify before a court can read founding-era sources.
- Set trials on constitutional meaning rather than deciding legal questions on the pleadings or summary judgment.
- Lean on deference to the trial judge’s “fact-finding” about history, which should not be treated like witness credibility.
In his telling, it’s a procedural reshuffle designed to keep modern laws alive as long as possible and exhaust the challengers.
Clarity, Speed, and Guardrails
Smith’s distinction tracks how appellate courts typically treat law versus facts. When you’re interpreting a constitutional provision, you don’t need who-did-what-when testimony. You need fidelity to text and an honest look at history.
Procedurally, that favors motion practice and clear records built from primary sources and judicially noticeable materials. It also curbs the temptation to turn constitutional litigation into an endless academic seminar with cross-examination.
That said, courts do sometimes need modest adjudicative facts – standing, residency, age, whether a plaintiff is actually affected – to ensure a real case or controversy. Tight discovery for those threshold items is fine.
But after that, the constitutional analysis should move quickly and live where it belongs: in legal briefs anchored to historical sources.
Smith’s larger point lands: delay itself decides rights. If a carry law is unconstitutional but remains enforceable for years, people live under a rule the Constitution forbids.
Courts already know how to prevent that. They can consolidate merits with preliminary relief, grant targeted injunctions when plaintiffs are likely to succeed, and prioritize briefing on pure questions of law. When they don’t, it often signals a policy preference dressed up as process.
A Playbook for 2A Litigants Post-Bruen
Borrowing from Smith’s guidance, a cleaner 2A litigation path looks like this:
File a complaint with the key legislative sources attached or cited; move early for a preliminary injunction on the Bruen framework; resist expansive “history expert” discovery; stipulate narrow adjudicative facts; and press for summary judgment on the constitutional question.
If a court insists on a trial about founding-era meaning, challengers should object and preserve the error. On appeal, they should remind the court that historical interpretation is a legal issue reviewed de novo – not a credibility contest over dueling PhDs.
Smith says the anti-gun side wants two things: run the clock and drain the tank. Recasting legislative questions as adjudicative fights helps them do both.
The antidote, in his view, is to force courts back to first principles. Treat the meaning of the Second Amendment as a question of law. Use history and text, not policy experts. Decide cases at the speed constitutional rights deserve.
Agree or disagree with his politics, the procedural point is hard to ignore. If courts turn every 2A challenge into a multi-year trial about modern harms and benefits, Bruen becomes a slogan instead of a standard – and the people it’s supposed to protect keep waiting in line.
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The article Gun Rights Advocates Say Courts Are Deliberately Delaying Key 2A Lawsuits first appeared on Survival World.
Mark grew up in the heart of Texas, where tornadoes and extreme weather were a part of life. His early experiences sparked a fascination with emergency preparedness and homesteading. A father of three, Mark is dedicated to teaching families how to be self-sufficient, with a focus on food storage, DIY projects, and energy independence. His writing empowers everyday people to take small steps toward greater self-reliance without feeling overwhelmed.
