A federal district court judge in Texas just upheld a set of gun-free zone laws covering bars, racetracks, and sporting events — and he got it wrong. The case is Ziegenfuss v. Martin, decided in the Northern District of Texas by Judge Mark T. Pittman, a generally solid Trump-appointed judge who clearly worked hard on this opinion. But hard work and correct results are not the same thing, and here I want to walk through exactly where the analysis breaks down before this case heads to the Fifth Circuit.
What the Texas Laws Actually Prohibit
Texas makes it a crime to carry a firearm at three categories of locations: (1) racetracks; (2) businesses that derive 51% or more of their gross revenue from on-premises alcohol sales — i.e., bars; and (3) premises where a high school, collegiate, professional, or interscholastic sporting event is taking place. Texas has had versions of these restrictions on the books since 1973. Judge Pittman upheld all three, finding them consistent with the nation’s historical tradition of firearms regulation under Bruen.
He was wrong, and the opinion’s first page tells you why. It opens by describing these laws as protecting Texans — treating gun-free zones as a safety benefit. That framing is backwards. As Professor John Lott has documented extensively, gun-free zones do not protect people; they concentrate defenseless targets. Every time you see a mass shooting, it is almost always in a gun-free zone.
The 1791 Problem — and the 1868 Confusion
The core Bruen test asks whether a modern firearms regulation is consistent with the historical tradition of firearms regulation in America, anchored in 1791. Judge Pittman acknowledges this. He says the right things about 1791 being the key period. And then he does not follow through.
Here is how 1868 and Reconstruction-era evidence fits into the analysis correctly: late-19th-century laws can be confirmatory — they may confirm a tradition that already exists in 1791. What they cannot do is supply the tradition when there is no 1791 anchor. Judge Pittman relies on 19th-century laws governing guns in taverns and at public gatherings, but he fails to establish any corresponding 1791 foundation first. You cannot confirm nothing. A 19th-century law that has no analog from the founding era is an outlier, not a tradition.
He also leans on a 1656 Virginia statute governing guns at drinking gatherings. But a single colonial-era Virginia law is not a tradition. Bruen itself said that three founding-era laws were not enough to establish a tradition — so one law from 1656 followed by 19th-century territorial laws (from jurisdictions that were not yet part of the United States and to which the Constitution did not even apply) cannot carry the weight Pittman assigns them.
Sensitive Places Require Government Security — Period
Judge Pittman also fails to properly define what makes a place “sensitive” under Bruen. The Supreme Court identified three examples: courthouses, legislative chambers, and polling places at the time of the founding. What was the common denominator? All three had government-provided comprehensive security — bailiffs, sheriffs, sergeants-at-arms. Armed government personnel controlled access and protected the proceedings.
Historian Dr. Angus McClellan’s recent SSRN paper demonstrates this principle rigorously: at the founding, location-based carry restrictions were strictly limited to places where the government supplied that comprehensive security. If the government does not provide metal detectors, armed guards, and controlled points of entry — as bars, racetracks, and sports venues plainly do not — then the place is not sensitive. If someone can sneak a gun past the nonexistent security at a racetrack, I do not lose my constitutional right to carry in case of a confrontation. That is not how the Second Amendment works.
Pittman also cites the Statute of Northampton, the 1328 English law, but misreads it. Bruen was explicit: the Statute of Northampton prohibits carrying arms “to the terror of the people” — in a threatening, terrorizing manner. Peaceable carry was always permitted. The king’s presence invoked armed royal security. That is not a blank check to ban guns wherever crowds gather in 2026 Texas.
The Liquidation Problem
Perhaps the most dangerous error in this opinion is Judge Pittman’s invocation of the doctrine of liquidation — a concept James Madison used to describe how the new, invented provisions of the Constitution could be clarified through early practice. Madison wrote: “A regular course of practice can liquidate and settle the meaning of disputed or indeterminate terms and phrases.”
The problem is that liquidation applies only to provisions that were brand new in 1787 — the Commerce Clause, the scope of Article III jurisdiction, the Senate’s rulemaking authority. The Second Amendment is categorically different. It codified a pre-existing right rooted in English common law and the rights of Englishmen going back centuries. You do not liquidate a pre-existing right by looking at what governments did in the 1860s. You identify the right’s historical meaning in 1791.
If anti-Second Amendment advocates succeed in importing liquidation into Second Amendment jurisprudence, it will be used to narrow the right by pointing to every post-Civil War restriction as a data point. That is the agenda. It should be rejected.
What Comes Next
The Firearms Policy Coalition has already announced it will appeal Ziegenfuss v. Martin to the Fifth Circuit. That is the right call. The Fifth Circuit will have the benefit of Wolford v. Lopez from the Supreme Court — which directly addresses the sensitive-places question in the Hawaii context — by the time it hears this appeal. The Fifth Circuit should vacate and apply the proper framework: Bruen, the government-security principle, and 1791 as the exclusive anchor for the historical tradition.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.