The Volokh Conspiracy
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Second Amendment Roundup: 4th Circuit Upholds Park Ban
Under Salerno test, ban held not to be invalid in all circumstances.
On August 27, the Fourth Circuit decided LaFave v. County of Fairfax, Virginia, a challenge to a ban on possession of a firearm in the public parks of the County. The opinion by Chief Judge Diaz avoided reaching the merits because it concluded that plaintiffs could not succeed in their facial challenge. (Disclosure: I represented the LaFave plaintiffs-appellants in the case.)
While not mentioned in the opinion, the parks consist of 23,584 acres of mostly wooded land with 334 miles of trails, which is over 9.3 percent of the land mass of the County. By comparison, the borough of Manhattan, which the Bruen court held does not qualify as a "sensitive place," is only 14,502 acres of densely-populated land.
The LaFave opinion began with recitations from the Bruen decision, including that the Second Amendment protects the "right to bear arms in public for self-defense." More precisely:
Bruen rejected the notion that the sensitive places doctrine allows governments to prohibit firearms in "all places of public congregation that are not isolated from law enforcement," which would "define[ ] the category of 'sensitive places' far too broadly." … "[T]he island of Manhattan," said the Court, doesn't qualify as a sensitive place "simply because it is crowded and protected generally by the New York City Police Department."
Plaintiffs-Appellants argued that the existence of sensitive places within Manhattan did not preclude Bruen from declaring New York's ban on carrying firearms in public places facially unconstitutional, even though firearms could be banned in sensitive places. The Thurgood Marshall United States Courthouse and the New York County Courthouse are located at Foley Square in Manhattan, and hundreds of schools are on that urban island. But New York's general carry ban was not valid, even though guns could be prohibited in sensitive places under specific laws.
The LaFave court saw it differently based on the existence of four preschools on a tiny portion of park property. In a facial challenge, the court related, "the challenger must establish that no set of circumstances exists under which the [challenged regulation] would be valid" (Salerno), or that "the statute lacks any 'plainly legitimate sweep'" (Stevens). To prevail against a facial challenge, "the [g]overnment need only demonstrate that [the challenged law] is constitutional in some of its applications." (Rahimi.)
LaFave upheld the ban on guns in the entire parklands on the basis that it may be constitutionally applied at the preschools. It noted that plaintiffs concede that "firearms may be banned in … schools," but contrary to the implication, plaintiffs noted that separate laws banned firearms in schools, but this law did not. No element of the offense of possession of a firearm in a park requires proof that the person possessed the firearm in a school. Heller said in dicta that a gun ban in schools is presumptively valid, but it did not say that one could be convicted under a general gun ban (such as D.C.'s handgun ban) as applied to a gun carried in a school. Here, a park ban is not a school ban.
According to LaFave, "The licensing regime in Bruen required all prospective gun owners to justify their wish to own a gun, regardless of where they sought to carry the weapon. There was no application of that regime that could satisfy the Second Amendment." Given that premise, the licensing regime would not satisfy the Second Amendment even if the applicant wished to carry a gun at a school. But any such carrying would be subject to a separate, specific school ban.
Moreover, the licensing issue did not stand alone – it was relevant only because carrying a firearm without a license was a crime. And the Second Amendment precluded a gun ban in all of Manhattan, even though it is filled with sensitive places.
Consider the implications of the holding that the parks ban is constitutional because a handful of preschools are on park property. Those same preschools are located in Fairfax County, so by implication firearms can be banned in the entirety of Fairfax County.
In more than one post-Salerno case, the Supreme Court clarified that "although statements in some of our opinions could be read to suggest otherwise, our holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision's grasp." E.g., Johnson v. United States (2015). The LaFave court responds: "Plaintiffs' cases adopting a more generous standard all concern vagueness and are unpersuasive in the context of a Second Amendment challenge." Vague laws are precluded by the Due Process Clause. And as Bruen repeats: "The constitutional right to bear arms in public for self-defense is not 'a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.'"
In Rahimi the Court applied the Salerno rule to a specific statute with elements that are not invalid in all applications, not a general gun ban without such specific elements. The statute bans gun possession by a person subject to a court order that includes "a finding that such person represents a credible threat to the physical safety of such intimate partner or child." 18 U.S.C. § 922(g)(8). The Court upheld this narrow prohibition facially because: "Unlike the regulation struck down in Bruen, Section 922(g)(8) does not broadly restrict arms use by the public generally." The park ban in LaFave does just that.
But what if the statute in Rahimi simply prohibited gun possession without more? It would be invalid in all applications, even as applied to a person who has such a court order. Just because another law could apply to such persons, this law banning guns generally would facially violate the Second Amendment, just like the handgun bans in Heller and McDonald.
Likewise with another precedent cited by the LaFave court, U.S. v. Canada (4th Cir. 2024). It upheld the ban on felon possession of a firearm as facially valid because it could be applied constitutionally in some cases, such as when the felony of conviction was carjacking or armed bank robbery. But again, if the law did nothing more than ban gun possession by all members of the public, it couldn't be constitutionally applied to anyone, even felons.
Salerno itself further illustrates the point. "A facial challenge to a legislative Act" – the Bail Reform Act in that case – "must establish that no set of circumstances exists under which the Act would be valid." The Act provided that a court must "detain an arrestee pending trial if the Government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions 'will reasonably assure … the safety of any other person and the community.'" As applied to dangerous persons, that did not violate the Due Process Clause. But imagine a more general law under which a court could simply detain any arrestee pending trial at whim without any finding at all. That law would be unconstitutional in all circumstances, even as applied to dangerous criminals.
In contrast to LaFave, in Rhode v. Bonta (2025), the Ninth Circuit decided that California's ammunition background check system lacks a "plainly legitimate sweep" and thus was facially unconstitutional. It noted that both Heller and Bruen found the subject laws to be facially unconstitutional.
Almost all Second Amendment challenges where the Salerno rule is applied involve criminal laws, which more often than not are upheld as not invalid in all circumstances. In the few civil cases where Salerno is raised, most courts address the Nation's history and tradition of firearm regulation. The Fourth Circuit in LaFave simply skipped over that analysis and upheld the parks ban based on the theory that a different kind of ban – a ban on firearms in schools – could be validly applied to schools located in parks, and thus the parks ban is not invalid in all applications. That's not a proper application of the Salerno test because the offense of gun possession in a park has no element related to schools.
The bottom line: if the existence of four preschools in the parks justifies a gun ban throughout the parks, the same justification – four preschools – would exist for a gun ban throughout all of Fairfax County. That logic could be applied even wider and would wholly upend the Second Amendment.
