Freeman Martin agrees the challenged Texas carry restrictions violate the Second Amendment—but argues the plaintiffs still cannot obtain relief against him.
Texas Department of Public Safety Director Freeman Martin has told the U.S. Court of Appeals for the Fifth Circuit that three Texas restrictions on carrying firearms are unconstitutional.
But the laws remain on the books.
In an August 14 appellate brief, Martin agrees with the plaintiffs that the challenged restrictions violate the Second Amendment and says they “should not be enforced.”
At the same time, he argues that the lawsuit against him should be dismissed on jurisdictional grounds.
That unusual posture is now at the center of Ziegenfuss v. Martin, Fifth Circuit No. 26-10302, brought by Firearms Policy Coalition and individual plaintiffs Charles Ziegenfuss, David Montgomery, and Brian Robinson.
The case challenges provisions of Texas Penal Code § 46.03 restricting firearms on the premises of racetracks, businesses deriving 51 percent or more of their income from alcohol sold for on-premises consumption, and certain high-school, collegiate, professional sporting, and interscholastic events, subject to statutory exceptions and defenses.
The plaintiffs filed their reply brief on September 11, pressing the Fifth Circuit to reverse the judgment below.
Martin Agrees on the Second Amendment—but Fights the Lawsuit
On the constitutional merits, Martin and the plaintiffs agree on the bottom line.
His brief states that the plaintiffs contend the three challenged laws are facially unconstitutional under the Second Amendment.
“Director Martin agrees.”
He also tells the Fifth Circuit that he has not enforced the challenged laws and “will not enforce them” because he considers them unconstitutional.
But Martin argues that agreement creates jurisdictional problems rather than entitling the plaintiffs to an injunction.
He contends that sovereign immunity bars the suit because the plaintiffs have not shown a sufficient willingness by him to enforce the challenged provisions. He also argues there is no proper Article III controversy between parties who agree on the underlying constitutional issue and that an injunction against him would not necessarily prevent enforcement by local officials or restrictions imposed by private property owners.
Martin therefore asks the Fifth Circuit to vacate the district court’s judgment and remand the case with instructions to dismiss without prejudice.
The plaintiffs reject that argument.
Their reply argues that DPS remains directly connected to enforcement through the arrest authority of Texas Rangers and Highway Patrol officers and indirectly through suspension or revocation of handgun licenses following certain charges or convictions.
They also argue that Martin’s position in court has not been turned into an actual non-enforcement directive to DPS officers and that nothing in the litigation position binds a future director once the case ends.
That distinction matters.
“When the DPS director tells a federal appeals court that these carry bans are unconstitutional, Texans should understand exactly what that does—and does not—mean,” said Texas Gun Rights Foundation President Chris McNutt. “A brief is not an injunction. It does not erase the statutes, and it does not provide the same enforceable protection as a court judgment. That gap is the heart of this fight.”
The Fight Over “Sensitive Places” Continues After Wolford
The procedural dispute does not eliminate the underlying Second Amendment question.
In its March 24 opinion, the U.S. District Court for the Northern District of Texas held that the plaintiffs had standing and that the conduct restricted by the challenged provisions falls within the Second Amendment’s plain text.
But the court ultimately upheld the laws.
It concluded that court-appointed amici had identified sufficiently analogous historical regulations to justify Texas’ restrictions as sensitive-place regulations.
The district court appointed Professor Eric Ruben and former Fifth Circuit Judge Gregg Costa to defend the laws’ constitutionality after Martin declined to defend them on the merits. They continue to defend the judgment in their appellate brief.
The plaintiffs argue that the historical evidence does not satisfy the Supreme Court’s Second Amendment framework. They contend that many of the laws offered as analogues are too late, too geographically isolated, or too different from Texas’ modern categorical restrictions.
The appeal also comes after the Supreme Court’s June 25 decision in Wolford v. Lopez.
There, the Court held that Hawaii violated the Second and Fourteenth Amendments by prohibiting licensed concealed-carry permit holders from carrying handguns on private property open to the public unless the property owner gave express authorization.
The Court emphasized that Hawaii had reversed the traditional default rule for property open to the public and imposed a significant new burden on lawful carry.
But Wolford did not decide whether Texas may prohibit firearms at racetracks, 51-percent establishments, or sporting events.
Instead, the decision gives both sides additional Supreme Court guidance for arguing about the historical tradition required to justify modern firearm restrictions.
Private property rights also remain a separate issue. Texas property owners may restrict firearms through applicable state notice and trespass laws. The dispute in Ziegenfuss concerns the government’s own criminal restrictions across designated categories of locations.
The Laws Are Still on the Books
For Texas gun owners, the immediate legal takeaway is simple:
Martin’s concession has not invalidated the challenged statutes.
The current text of § 46.03 still contains the challenged provisions, along with applicable exceptions and defenses.
DPS’s own current carry guidance also continues to identify 51-percent establishments, sporting events, and racetracks among locations restricted under Texas law.
Martin’s appellate position is therefore not a repeal, injunction, declaratory judgment, or amendment to the statute.
Texans should not treat it as authorization to disregard existing law.
The Fifth Circuit is being asked to resolve two very different questions: whether the constitutional challenge can proceed against Martin and, if the court reaches the merits, whether the three restrictions can survive the historical analysis required by the Second Amendment.
That is what makes Ziegenfuss unusual.
The DPS director says the restrictions are unconstitutional. The plaintiffs agree. Court-appointed amici are defending the district court’s decision upholding them. And the statutes themselves remain in force unless and until legally effective relief changes that result.
A government official’s agreement with a constitutional claim matters.
But an enforceable judgment is something different.
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