Texas’ top public-safety official has now told a federal appeals court that three state carry bans violate the Second Amendment. Yet the laws remain on the books, Texans remain exposed to arrest, and the same official is asking the court to throw out the lawsuit seeking an enforceable judgment against them.
That contradiction is now at the center of Ziegenfuss v. Martin, a Firearms Policy Coalition challenge pending before the U.S. Court of Appeals for the Fifth Circuit.
On September 11, FPC filed its reply brief, completing the scheduled merits briefing in the appeal. The case challenges Texas Penal Code §46.03 provisions that prohibit firearm carry at racetracks; inside businesses that derive at least 51 percent of their revenue from alcohol sold for on-premises consumption; and on premises where high-school, collegiate, professional-sporting or interscholastic events are taking place.
The 51-percent ban applies even when the armed citizen is completely sober and has no intention of drinking.
Texas Concedes the Bans Are Unconstitutional
Texas Department of Public Safety Director Freeman Martin’s position is remarkable. His appellate brief says he agrees with the plaintiffs that all three laws are unconstitutional and should not be enforced.
But Martin does not want the Fifth Circuit to strike them down. He asks the court to vacate the district-court judgment and dismiss the lawsuit on sovereign-immunity, standing and case-or-controversy grounds. DPS argues that Martin has not enforced the challenged provisions against these plaintiffs. Local authorities perform the relevant enforcement, and that his courtroom position eliminates any credible threat from DPS.
FPC’s answer is straightforward: a litigation concession is not an injunction.
According to the reply, Texas Rangers and Highway Patrol troopers retain statewide arrest authority. While DPS can suspend or revoke a handgun license after a licensee is charged with or convicted of violating the challenged laws. FPC says Martin has not promised that DPS will refrain from enforcement, shown that officers have received a non-enforcement directive, or bound any future DPS director to his current litigation position.
If Texas truly believes these carry bans are unconstitutional, it should stop enforcing them and accept a judgment that prevents their enforcement. It should not leave peaceable gun owners to gamble their liberty on a lawyer’s representation in one lawsuit.
A Courtroom Concession Is Not Constitutional Protection
The procedural dispute matters well beyond these three locations. Government officials cannot be allowed to insulate unconstitutional laws from judicial review by conceding the merits while refusing the relief that would protect citizens.
FPC argues that the parties remain genuinely adverse because they want different real-world outcomes. The plaintiffs want a declaration and injunction barring enforcement. Martin wants dismissal, which would leave the statutes intact. Without a binding judgment, local officers are not restrained, DPS enforcement authority remains disputed, and a future director could change course.
In other words, Texans still face laws carrying criminal consequences while the official defending the appeal tells the court those same laws violate the Constitution. Rights cannot safely depend on prosecutorial grace.
Where Is the Founding-Era Tradition?
The merits question is equally important. Under N.Y. State Rifle & Pistol Association v. Bruen, once the Second Amendment’s plain text covers the conduct, the government must establish that its restriction is consistent with the Nation’s historical tradition of firearm regulation.
FPC argues that the historical record does not support any of the three categorical bans. Taverns were common when the Second Amendment was ratified, but the briefs defending the laws identify no Founding-era rule categorically disarming ordinary citizens merely for entering one. Laws aimed at intoxicated people or the discharge of firearms are not historical twins for disarming a sober person because a business crosses Texas’ 51-percent revenue threshold.
The same problem applies to sporting events and racetracks. Public amusements and horse racing existed long before 1791. FPC notes that America’s first official racetrack was established on Long Island in 1665. Yet the historical defense relies heavily on later, scattered regulations, including a single Tennessee restriction from 1868.
The Founding generation knew about taverns, crowds, alcohol, sporting contests and horse racing. Its failure to broadly ban peaceable carry at those places is evidence, not an inconvenience to be explained away.
Private property rights also remain protected. A Texas business that wants to exclude firearms may provide notice under the state’s existing trespass and carry-notice laws. That is fundamentally different from the government turning every business or event in an entire category into a mandatory gun-free zone.
The Texas Carry Bans Remain in Force
This filing is an appellate brief, not a ruling, injunction or change in Texas law. Gun owners should not mistake a constitutional concession in court for permission to ignore §46.03.
As AmmoLand previously reported, U.S. District Judge Mark T. Pittman ruled on March 24 that the plaintiffs had standing and that the Second Amendment’s plain text covered the conduct. Nevertheless, he upheld the bans after finding the appointed amici had supplied sufficient historical analogues. FPC appealed that judgment.
The Fifth Circuit can now decide whether the district court stretched the “sensitive places” exception beyond the original meaning of the Second Amendment. Also, whether Texas can confess that its laws are unconstitutional while keeping gun owners under their threat.
The case is Charles Ziegenfuss et al. v. Freeman Martin, Fifth Circuit No. 26-10302, arising from No. 4:24-cv-01049-P in the Northern District of Texas. No oral-argument date is publicly listed. A precedential Fifth Circuit decision would govern federal courts in Texas, Louisiana and Mississippi.
The right answer is not complicated. When the state admits a law violates the right to keep and bear arms, that law should be void. The Fifth Circuit should reverse.
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About Duncan Johnson:
Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor and editor-in-chief for AmmoLand News and is responsible for AmmoLand’s daily gun-rights reporting and industry coverage.
