In Wolford v. Lopez, the Supreme Court has the opportunity to clarify for the lower courts the difference between legislative and adjudicative facts. Lower courts hostile to the Second Amendment routinely confuse legislative and adjudicative facts, seeking to turn Second Amendment litigation into an expensive and time-consuming battle of the academic experts and historians where the "winner's" opinions are insulated from review absent a finding of clear error.
Adjudicative facts refer to evidence about the conduct of the parties within a case, i.e., the answer to the question "did the defendant drive through a red light?" Historical laws and events that do not bear on the conduct of the specific parties are legislative facts, i.e., Founding Father James Madison died in 1836 or the British were marching to seize arms and weapons when the Battle of Lexington and Concord broke out.
Nevertheless, lower courts often hear testimony from so-called "expert" historians on questions of legal interpretations involving Second Amendment issues and historical firearm regulations. Then, those lower courts rely on that testimony to make legal findings about the meaning of the Second Amendment and the constitutionality of modern gun laws. Not only are these courts legislating from the bench, they are signaling a return to interest balancing in defiance of the Court's holding in Bruen.
