Will Ken Paxton Take a Page from Florida AG’s Playbook in Carry Case?

Florida Attorney General James Uthmeier has done an outstanding job of helping to restore Second Amendment freedoms to Floridians by simply refusing to defend indefensible gun laws. When a court ruled that Florida’s ban on open carry violated the Constitution, Uthmeier declined to appeal. More recently, Uthmeier has sought to end a lawsuit challenging Florida’s waiting period laws by agreeing with the plaintiffs that the restriction is an ahistorical aberration, not part of the national tradition of gun ownership. 

Now Texas Attorney General Ken Paxton has the opportunity to take a similar stand in support of the Second Amendment is a case called Ziegenfuss v. Martin; a challenge to several “sensitive places” in the Lone Star State where lawful carry is banned. 

The Firearms Policy Coalition filed its opening brief with the Fifth Circuit Court of Appeals on Monday after a district court judge upheld the prohibitions on carrying in bars and restaurants that derive at least 51% of their revenue from the sale of alcohol, racetracks, and sporting events. 

Paxton originally argued that while he believes the prohibitions violate the Second Amendment, FPC and others had no grounds to sue the Texas Department of Safety over the prohibitions. Eventually Paxton declined to defend the law, but instead of entering into an agreement with the plaintiffs as Uthmeier has done in Florida, Paxton simply said his office wouldn’t participate in the litigation, which gave the district court judge the opportunity to appoint pro-gun control law professor Eric Ruben and attorney Gregg Costa to defend the statute. 

Now that the case is pending before the Fifth Circuit Court of Appeals, Paxton could conceivably decide to take the reins from Ruben and Costa for the purpose of entering into a settlement with the plaintiffs. Democrats, including James Talerico, Paxton’s Democrat opponent in the U.S. Senate race, would howl in protest, but the move could help Paxton with Republicans… and based on recent polling he has some work to do in that regard. 

A recent survey conducted by Texas A&M University’s Bush School of Government & Public Service and ReconMR found a 13-point enthusiasm gap between Democrat and Republican voters, with 66% of Democrats saying they were almost certain to vote in November compared to just 53% of Republicans. Paxton has a 62% favorable rating among Republicans in the same survey, which doesn’t sound too bad. It is, however, 24 points behind Gov. Greg Abbott’s approval rating among Republican voters. 

With a favorable rating of just 34% among all voters, Paxton is less popular than Abbot and Donald Trump in the Lone Star State. 

The survey found Paxton and Talarico tied at 46%, but while 97% of Democrats say they plan on voting for Talerico, 87% of Republicans say they plan on voting for Paxton in November. 

Paxton clearly needs to do something to help goose his support among Republicans, and taking a high-profile stand in support of the right to bear arms is one way to do that. Paxton is still listed in the FPC brief as the counsel for Texas Department of Public Safety head Freeman Martin, so he does have the power to enter into a settlement with the plaintiffs; one that recognizes the right to carry in these publicly accessible spaces. 

One wrinkle, though, is that the Fifth Circuit would have to permit Paxton to once again actively join the litigation, and would have to sign off on any settlement he might reach with the plaintiffs. In the Florida waiting period case, Uthmeier and the plaintiffs are still waiting on the judge to accept the agreement that’s been reached between the two parties, and its conceivable that the judge could decline to do so and instead appoint outside counsel to defend the statute, as the district court did in Ziegenfuss. The strategy I outlined above, then, isn’t a slam-dunk for either the plaintiffs or for Paxton, but I still think it’s the right thing to do from both a constitutional and political perspective. 

Editor’s Note: President Trump and Republicans across the country are doing everything they can to protect our Second Amendment rights and right to self-defense.

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