On Tuesday evening, Director Steven McCraw of the Texas Department of Public Safety (DPS) filed his notice of appeal to the U.S. Fifth Circuit Court. Shortly after the district court’s ruling was issued, comments by Gov. Greg Abbott indicated the governor was not keen on challenging the ruling.
Continuing to serve as counsel for McCraw and DPS is the Office of the Attorney General (OAG), a customary responsibility of the OAG but not a mandatory one.
In the original ruling, Judge Mark Pittman found that in light of the U.S. Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen, Texas’ law failed to pass the new two-step analysis. First, a court must consider a regulation’s adherence to the intended meaning and historical context of the Second Amendment, and second, analyze the law’s burden on gun rights.
This suit was originally brought against DPS and a trio of county attorneys by the Firearms Policy Institute (FPI) along with two individual plaintiffs between the ages of 18 and 20.
“Texas Public Safety Director McCraw is welcome to appeal to a higher power, as is his right,” said Bill Sack, FPC Director of Legal Operations. “But we fully expect that he will be equally disappointed when the Fifth Circuit properly applies the Bruen standard, just as the District Court has done, and strikes down Texas’ ban.”
DPS did not return a request for comment.
The Bruen ruling has turned firearm jurisprudence on its head. In another Texas case this week, a judge ruled unconstitutional the federal government’s prohibition against those under felony indictment, but not conviction, from purchasing a firearm.
Another point of consideration is the OAG’s continued role in representing McCraw. Attorney General Paxton drew criticism from certain grassroots conservative circles for representing the Secretary of State in a lawsuit over the language of a 2021 constitutional amendment concerning toll road authority.
Among the OAG’s core responsibilities is to represent state agencies, but there are alternative options such as directing the agency to use in-house counsel or hire outside counsel. This issue is of much larger consequence than the toll road amendment, so it will be notable to watch how the conservative circles, most of which support the district court’s ruling, react to the OAG’s continued role in the lawsuit.
Texas passed permitless carry last year but the legislation did not include 18 to 20-year-old adults in its provisions.
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Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.