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.