Guns at the Texas State Fair

After a man opened fire in a food court at the State Fair of Texas in October 2023, wounding three people, the fair moved this year to tighten security on-site and ban firearms.  On August 8, the State Fair of Texas—a nonprofit private organization that runs the annual event—announced that all firearms would be prohibited at the 2024 State Fair, regardless of whether the attendee holds a concealed carry license.[1]  Now, in the days leading up to the fair’s opening on September 27, a legal fight is playing out in state court over the fair’s ability to enforce its ban.

According to reporting, “[t]he city [of Dallas] owns Fair Park, which it leases to the State Fair [nonprofit organization] during the 24-day event” each year.  After State Fair officials announced the ban in early August, Texas attorney general Ken Paxton sent a letter to the Dallas city manager warning that his office considered the ban to be an act by “the City of Dallas (a political subdivision of the state) . . .  prohibiting a license holder from entering or remaining on premises or other place[s] owned or leased by the City of Dallas” in violation of a piece of Texas’ state firearm preemption law.  State law bars political subdivisions (i.e., municipal governments) from taking any action that “states or implies that a license holder who is carrying a handgun . . . is prohibited from entering or remaining on a premises or other place owned or leased by the governmental entity unless license holders are prohibited from carrying a handgun on the premises or other place by [specific provisions of the state penal code].”  Texas law includes a short list of sensitive locations where guns are generally prohibited—which are listed in a separate provision of Texas’ penal code and include government buildings, airports, racetracks, and certain schools. 

The key issue in the current dispute is whether the State Fair is functionally a “political subdivision” due to its relationship with the city of Dallas, and thus subject to the state’s restriction on preventing concealed carry license holders from carrying on government-controlled property.  The situation doesn’t neatly fit within the statutory language, which contemplates only a situation where the government itself leases private land for public use, rather than when it leases public land to a private entity.

After sending the warning letter, Dallas responded that it did not believe the gun ban violated state law. Paxton’s office subsequently sued both Dallas and the State Fair in state court seeking injunctive relief preventing those organizations from enforcing the ban.  The complaint acknowledged that “there are some premises or buildings located within Fair Park where a license holder is prohibited under [state law] from carrying a weapon[,] such as certain premises or buildings when they are used for a high school, collegiate, professional sporting or interscholastic events.”  But the state went on to argue that “the vast majority of the 277-acre Fair Park in Dallas is not a place where weapons or firearms are prohibited, and those licensed to carry should not be subject arrest upon entering the Fair grounds.”  After hearing argument on September 19, a state judge issued an oral decision leaving the gun ban in place and denying the state’s requested preliminary injunction.

As expected, the hearing focused largely on the legal status of the State Fair; in other words, whether the fair is an agent or extension of the municipal government of Dallas or a private organization that happens to have entered into a long-term lease with the city for Fair Park.  According to reporting, “State Fair attorneys successfully argued the gun ban is legal because the organization operates independently as a private nonprofit, not a government entity.”  The state pushed arguments that the State Fair is not a truly independent entity and did not enter into the lease agreement as such. 

Two ancillary issues surfaced during the hearing.  First, the state had added several concealed-carry license holders as plaintiffs and the city and fair asserted that those claims were barred because the license holders did not first seek relief through city administrative processes.  Second, during the litigation, Paxton’s office withdrew a 2016 legal opinion letter in which it had suggested that an entity in the same position as the State Fair would not be subject to the state restriction on prohibiting concealed carry.  The letter related to an inquiry about the ability of non-profit agencies with offices located on land leased from a municipal government to ban handguns consistent with state law.  At the time, the attorney general’s office determined that Texas Government Code § 411.209 (the primary provision at issue in the State Fair dispute) did not apply where “the private, nonprofit entity appears to have an arms-length agreement to lease city property and is not otherwise associated with the city.”  Analyzing separate provisions of the state’s penal code, the letter found that Texas law generally makes it a criminal offense to carry a handgun onto another’s private property without consent where the license holder receives notice and concluded that the governmental-entity exception likely does not apply to property leased by a municipal government to a private entity.

On September 23, Paxton’s office filed an appeal of the trial judge’s decision upholding the ban and “asked for a ruling . . . by Tuesday, Sept. 24, to give the Texas Supreme Court time to consider the issue if needed before the fair opens on Friday.”  Yesterday, a state appellate court unanimously affirmed the trial judge's ruling allowing the ban to remain in place.  Attorney General Paxton wrote on X yesterday evening that he plans to "challenge this decision immediately in the Texas Supreme Court" with the hopes of obtaining a reversal before Friday's fair opening. 

Aside from the public/private distinction on which the state-court litigation is focused, the ongoing dispute over the State Fair’s gun policy demonstrates how the concealed-carry licensing process remains relevant even as 29 states (including Texas) now allow permitless carry.  Paxton’s office is notably not arguing that the fair is required to allow anyone who meets the minimum legal requirements to carry handguns in public to do so on fair grounds.  Rather, the arguments and legal challenge have all occurred in the more limited context of gunowners who hold Texas concealed carry permits—despite the state no longer requiring such licenses.  To me, this indicates a recognition that licensing, background checks, and (potentially) training requirements may continue to play a substantive role in the debate over public carry across the country.  Texas’ position seems akin to a graduated licensing scheme where only those who have met certain criteria—and not all legal gunowners—should be allowed to carry guns in crowded public areas such as the State Fair.  Other states, including those with permitless carry and a generally expansive approach to gun rights, maintain permitting systems that are explicitly graduated with more permissive “enhanced” licenses granted to those who have completed additional training.

The Texas dispute is also not the first of its kind.  Minnesota gunowners challenged a carry ban instituted by the Minnesota state fair in 2022, and a federal district court upheld that ban.  The Minnesota fair is administered in a slightly different manner and managed by a “Society [that] is a public corporation created by the Minnesota Legislature.”  While the plaintiffs in the Minnesota case made similar arguments that the Society was an extension of the state or municipal government (and appear to have more support for that argument given the Society’s genesis as a state-created entity), the judge ultimately found that this issue was not determinative because the Second Amendment claim failed on the merits.  The judge held that the ban was narrowly drawn to “protect[] the fairground from gunfire” and that the state fair was similar to other sensitive locations where the Supreme Court has suggested that prohibiting firearms is permissible.  The analysis in the Minnesota case was not extensive but, after Bruen, a key issue in any future Second Amendment challenge to a state fair gun ban will be the historical time period.  While states and territories in the mid-to-late 1800s restricted public carry at places of public gathering and amusement, historical analogues from the Founding Era would need to be found at a higher level of generality.  After all, the first state fair in the United States did not occur until 1841.