The United States Court of Appeals for the Fifth Circuit just 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 that requires every public-school classroom to display a donated poster of the Ten Commandments. The 9–8 majority, written by Judge Stuart Kyle Duncan and joined by Chief Judge Jennifer Walker Elrod, held that Texas Senate Bill 10 does not violate the First Amendment’s Establishment Clause. That alone is a big deal. But the methodology the en banc court used is, in my read, the bigger story — and it is a methodology I have been arguing the Supreme Court must run through every part of the Bill of Rights, the Second Amendment included.
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 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 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 is fixed in 1791. That is the methodological lockstep our right to keep and bear arms needs.
The Dictionaries Heller Used
The proof is in the footnotes. To define what “an establishment of religion” meant in 1791, the Fifth Circuit reached for 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 two dictionaries Justice Antonin Scalia leaned on in Heller to define “keep” and “bear” and “arms.” Footnote 14 of the opinion cites Webster by name. The court even pulled William Blackstone’s Commentaries on the Laws of England off the shelf to explain what an established church looked like in pre-revolutionary England.
When a federal court reaches for Johnson, Webster, and Blackstone to interpret the Bill of Rights, the anti-gun lobby’s favorite cheat code — citing late-19th-century Black Codes and post-Reconstruction disarmament statutes — gets harder to play.
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 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, sitting roughly sixteen sections away at § 1890, wrote the sentence every Second Amendment lawyer knows 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 voice the Fifth Circuit just blessed as authoritative for interpreting the Bill of Rights. If § 1874 is good law for the First Amendment, § 1890 is good law for the Second.
Moore v. Madigan and the End of the Expert Historian
The other piece worth celebrating is the methodology fight over experts. 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, citing Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012) — Judge Richard Posner’s concealed-carry decision striking down Illinois’s blanket ban — for the proposition that constitutional history is a “legislative fact” the judges decide for themselves, not an “adjudicative fact” for a paid expert. I have been hammering this distinction at the Federalist Society and in the Harvard Journal of Law & Public Policy: founding-era history is for the court, not for the witness stand. The Fifth Circuit has now made it law in three states.
The Spider Web
Here is why I cover First Amendment cases on a Second Amendment channel. 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 ours, vibrated with it. Nathan v. Alamo Heights is 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 methodology is consolidating. The road into 1791 is becoming the only road.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.