Texas DPS Director agrees challenged laws are unconstitutional while Houston Astros and other anti-rights organizations ask Fifth Circuit to preserve them
NEW ORLEANS (September 11, 2026) — Firearms Policy Coalition (FPC) announced today that it filed its reply brief with the United States Court of Appeals for the Fifth Circuit in Ziegenfuss v. Martin, urging the Court to reverse the judgment below and strike down three Texas laws that criminalize carrying firearms at certain locations, including racetracks, businesses that derive 51 percent or more of their revenue from alcohol sales, and sporting and interscholastic events.
The case presents an unusual situation: Defendant Texas Department of Public Safety Director Freeman Martin agrees with FPC that the challenged carry bans are unconstitutional, but nevertheless argues that FPC’s lawsuit should be dismissed on jurisdictional grounds, which would allow DPS to continue enforcing bans it still enforces today.
Court-appointed amici Eric Ruben and Gregg Costa defended the bans on their merits, arguing that they reflect a constitutionally permissible “balance” between liberty and security. And amici including Everytown for Gun Safety, the Texas Restaurant Association, the Houston Astros, Houston Dynamo, Houston Dash, FC Dallas, Austin FC, the Houston Livestock Show and Rodeo, Harris County, the Harris County Sheriff’s Office, and Harris County District Attorney Sean Teare all filed briefs essentially arguing that the Court should ignore the Constitution and leave the challenged carry bans in place because of their policy preferences.
The FPC reply builds on the Supreme Court’s recent decisions in United States v. Hemani and Wolford v. Lopez. FPC previously explained that Wolford reaffirmed the “general right to publicly carry arms” recognized in Bruen and emphasized that the Second Amendment protects Americans’ right to carry arms for self-defense as they go about their daily lives, and that Hemani rejected categorical disarmament based merely on the possibility that someone might pose a danger.
“Texas itself says these bans are unconstitutional but wants to keep us out of court so they can keep violating your rights. Gun owners have to be concerned when a state like Texas has a bunch of anti-rights extremists lining up to defend its gun control laws and keep these criminal restrictions in place. Some of these organizations openly argue that their security preference is for the government to flat-out disarm people in spite of our constitutionally guaranteed right to bear arms. But the People’s rights are not subject to veto by Texas bureaucrats or wealthy business owners. The Fifth Circuit must enforce the Constitution and end these immoral bans,” said FPC President Brandon Combs.
FPC’s reply brief argues that none of the amici has identified the historical tradition required to justify Texas’s categorical carry restrictions under Supreme Court precedent. Bars, taverns, firearms, sporting activities, and horse racing all existed at or before the Founding, yet the amici cannot identify a representative Founding-era tradition of disarming peaceable people merely because they entered those locations. And Texas’s 51% Ban is particularly sweeping. It criminalizes carry based on the nature of the business even when the person carrying does not consume any alcohol.
Because they can’t make a constitutional case that justifies the laws under the Supreme Court’s Second Amendment cases, the amici also resorted to extensive policy arguments and scare tactics.
Notably, the Texas Restaurant Association (TRA) asked the Fifth Circuit to preserve the judgment upholding the challenged carry bans, focusing in particular on the blanket criminal prohibition on peaceable firearm carry in 51% establishments. The TRA’s 2026 officers include individuals from El Arroyo (Austin), Den-Tex Central (Denny’s) (San Antonio), and George’s & Jorge’s Cantina (Waco). The TRA’s website also shows TRA and TRF board members include individuals affiliated with Fertitta Entertainment, Raising Cane’s, Chipotle, Coca-Cola Corporate, Texas Department of Criminal Justice, U.S. Coast Guard, DIRECTV, Kesco Supply, and Pappas Restaurants, among others.
The Houston Livestock Show and Rodeo told the Court that the criminal prohibition is a “key pillar” of its security program even though the organization spends more than $11 million annually on uniformed and plain-clothes law enforcement, private security, screening, surveillance, and other security measures. And Harris County and its law-enforcement amici argue that the bans reduce firearm incidents, ease demands on law enforcement, and prevent firearms from entering locations where alcohol, gambling, crowds, and families are present. Their brief hilariously and inaccurately asserts that, because of the prohibitions, “the risk of gun violence stops at the door.”
As we’ve seen, violent criminals don’t follow laws in the first place, and someone intent on committing a violent crime isn’t going to first ignore laws against murder or assault but for some reason stop their conduct short of violence when they suddenly consider Texas’s ban on carry in locations like bars, racetracks, or sporting events. FPC’s reply challenges the amici’s predictions with the other side of the self-defense equation, pointing to the March 1, 2026 attack at an open-air Austin bar, where a gunman fired for approximately five minutes, killing three people and injuring 15. The FPC reply argues that peaceable patrons should not be deprived of the ability to defend themselves based on the policy preferences advanced by the amici. FPC’s reply also points out that Texas is in the minority on its 51% prohibition: the brief identifies 36 other states that permit firearm carry in bars without the catastrophic consequences predicted by the amici.
Going back to the constitutional considerations, FPC’s reply argues that the amici’s policy arguments cannot substitute for constitutional analysis. As the brief explains, the Supreme Court has rejected judicial interest balancing under the Second Amendment because the relevant balance was already struck by the People when the right was constitutionally protected. And Texas businesses that want to control conduct on their private property remain free to do so through the State’s existing private-property notice laws. What FPC challenges is the State’s categorical decision to make peaceable carry a crime regardless of the property owner’s wishes—much like the default no-carry, or “vampire rule,” the Supreme Court struck down in Wolford.
In its brief, anti-Second Amendment litigation regular Everytown asked the Fifth Circuit to give substantial weight to Reconstruction-era and later restrictions and argued that, if the Court chooses a single focal period for determining the right’s meaning, it should look to the Reconstruction era rather than 1791. Everytown’s preferred approach would give anti-gun governments and their allies a much larger pool of later gun-control laws to use against the People today, including restrictions from the Reconstruction era’s notorious history of racial discrimination and government efforts, including through the Black Codes, to disarm Black Americans. FPC’s reply shows why the Court should reject that approach, arguing that the Second Amendment codified a pre-existing right whose meaning did not change when the Fourteenth Amendment later made that protection enforceable against the States.
“The anti-rights amici ask the Fifth Circuit to put fear, government convenience, and authoritarian policy preferences back into a constitutional test that the Supreme Court has repeatedly said is governed by text and relevant history. We reject that tyrannical approach and the Court should, too, under binding Supreme Court precedent. Rights are rights precisely because governments and powerful institutions do not get to decide whether the People really need them. We and our FPC Grassroots Army will continue to Fight Forward until peaceable people can exercise their right to bear arms when, where, and how they choose,” Combs concluded.
The reply brief and other case documents in Ziegenfuss v. Martin can be viewed at firearmspolicy.org/ziegenfuss.
Individuals who want to join the FPC Grassroots Army and help support important lawsuits like this one can visit JoinFPC.org.
FPC and the individual plaintiffs are represented by Bradley A. Benbrook, Stephen M. Duvernay, and Jamie G. McWilliam of Benbrook Law Group, P.C., and R. Brent Cooper of Cooper & Scully, P.C.
Media Contact: [email protected]
About Firearms Policy Coalition
Firearms Policy Coalition (FPC) is a nonprofit membership organization that exists to create a world of maximal individual liberty and eliminate unconstitutional gun control laws. FPC works—and wins—for the People through high-impact strategic litigation, groundbreaking research, legislative and regulatory advocacy, grassroots activism, education, and public engagement. FPC’s legal division, FPC Law, is the nation’s leading initiative dedicated to restoring the right to keep and bear arms across the United States. To learn more about how FPC is working—and winning—for the People, sign up for FPC news alerts at firearmspolicy.org and follow FPC on X, Instagram, and Facebook.
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