Unpacking Court Mistakes in 2nd Amendment Cases: How Courts are Twisting Your Gun Rights!

Since the landmark Bruen decision, Mark Smith, legal scholar and host of The Four Boxes Diner on YouTube, has been vocal about what he sees as significant missteps by courts handling Second Amendment cases. As Smith explains, the Second Amendment isn’t just words on paper; it’s a solid, constitutionally protected right for Americans to keep and bear arms.

However, according to him, many courts are still missing the mark, even with clear Supreme Court guidance from Bruen and Heller.

In his paper, he argues that these cases are crucial for American gun rights moving forward. His recent scholarly paper “Dangerous, but not Unusual: Mistakes Commonly Made by Courts in Post-Bruen Litigation” (embedded below) highlights the core mistakes that could seriously impact the future of lawful firearm ownership. Here’s a breakdown of some of the key points he raises:

Common Use – It’s Not Just for Self-Defense

Regarding the “in common use” standard from Heller. This test means that if millions of law-abiding Americans legally own a type of firearm, the government shouldn’t have the power to ban it. Some courts have twisted this idea, claiming that common use only counts if it’s for self-defense. The paper emphasizes that this narrow view isn’t the law; if millions of people own a gun like the AR-15 for activities like target shooting, hunting, or collecting, that qualifies as “common use” under the Second Amendment.

Shifting the Burden of Proof – A Major Constitutional Misstep

In many recent cases, courts have put the burden on gun owners to prove their right to possess certain firearms. Smith is clear: that’s backward. Bruen states that once a gun owner shows the Second Amendment applies, the government must prove why it has a historical basis for any restriction.

This burden-shifting tactic, flips the Second Amendment on its head, making people justify their rights instead of forcing the government to justify its bans.

Fear-Based Bans on “Dangerous” Guns

Smith tackles the “dangerous and unusual” argument courts use to ban certain firearms. Just because a gun looks intimidating doesn’t mean it’s unusual or that it should be banned. The Supreme Court has already ruled that “dangerousness” isn’t a legal basis for gun restrictions. The paper warns that if we let courts ban guns on appearances, there’s no telling where that line stops.

The Technological Change Trap

Some courts argue that modern firearms, like semi-automatics, are so advanced compared to the muskets of the 1700s that the founders wouldn’t have anticipated them. That reminds us the Heller ruling addressed this argument, affirming that just because a gun is more sophisticated doesn’t mean it’s unprotected by the Second Amendment. Technology might evolve, but the core right to self-defense doesn’t.

Expanding “Sensitive Places” to Chip Away at Rights

Smith sees the push to declare more areas “sensitive places” as a dangerous expansion. Bruen was clear: you can’t just call every location “sensitive” and ban guns there. Historical records show that even at places like churches and town meetings, armed citizens were a norm for community defense.

According to him, this attempt to stretch “sensitive places” is a backdoor attempt to restrict the Second Amendment.

Licensing Games & Hidden Barriers

Finally, the paper calls out states trying to maintain “may-issue” licensing under new names and standards, like “good moral character.” He warns that these subjective rules give government officials too much leeway to deny rights. By keeping vague standards, states are turning a constitutional right into a privilege for only those who pass their tests.

Why This Matters for Every American

Mark Smith’s paper doesn’t just highlight issues—it’s a call to action. He believes that an informed citizenry is essential for holding courts accountable. If people understand their rights, they’re better prepared to fight back against misapplications of the law. Defending the Second Amendment isn’t just a legal battle—it’s about preserving the fundamental right of self-defense for all Americans.

For those who care about their rights, following these legal cases and understanding their impact is the best defense against the erosion of gun rights. By staying educated and aware, gun owners can stand up against efforts to redefine the Second Amendment out of existence.