The Volokh Conspiracy
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Second Amendment Roundup: Hawaii's Ban on Firearms on Property Open to the Public
In Wolford, the Supreme Court should clarify the facial/as-applied issue.
As we have been posting, on January 20, the Supreme Court will hear oral argument in Wolford v. Lopez, where the question presented is: "Whether the Ninth Circuit erred in holding, in direct conflict with the Second Circuit, that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier?"
Hawaii's Act 52 provides that a licensee may not "enter or remain on private property of another person while carrying a loaded or unloaded firearm … unless the person has been given express authority." It applies regardless of whether the property is open to the public. Since the challengers disown contesting the constitutionality of the ban on private property not open to the public, can it be said that the law is not unconstitutional in all applications? No, because one part of a law may be facially unconstitutional, and another part of the law may not be.
Moreover, although plaintiffs formally state that their challenge is both facial and as applied, is there any real difference here? "As applied" normally refers to application to specific plaintiffs, and if their claim is valid here, the law is unconstitutional as applied to everyone. (By contrast, there was a reason Mr. Rahimi, a bad dude, forewent a challenge as applied to himself.)
In Respondent's Brief, Hawaii argues that the petitioners have "made an all-or-nothing argument akin to a facial challenge and, having done so, they cannot succeed unless 'no set of circumstances exists under which the [law] would be valid' as applied to private property open to the public." The quoted wording is from Rahimi and derived from Salerno. (That apparently refers to the separate "sensitive places" bans that would apply to places open to the public.) While Hawaii did not make a full-fledged argument on that basis, this would be a good opportunity for the Court to clarify the issue, as the law here poses the same question on which other courts have been grappling.
In particular, as I posted here, the Fourth Circuit held in LaFave v. Fairfax County, Va. (2025), that a ban on firearms in the public parks, which are mostly wooded and twice the size of Manhattan, is not facially unconstitutional because of the existence of four preschools on a tiny portion of the parkland. No matter that no element of the offense pertains to schools or that state law separately bans firearms in schools.
Similarly, as posted here, in oral argument before the Second Circuit about another park ban, Christian v. James, 25-384-cv, New York's attorney argued that "if 99% of a law is unconstitutional, but is 1% ok," it is valid because it has a constitutional application. While that case has not yet been decided, in Antonyuk v. James (2024) the Second Circuit held that because (supposedly) "the law has a plainly legitimate sweep as to urban parks, the facial challenge fails notwithstanding doubt that there is historical support for the regulation of firearms in wilderness parks, forests, and reserves." Despite that concession, the court did not enjoin enforcement in such rural areas.
In Knife Rights v. Bondi, pending in the Fifth Circuit, the United States argues that the federal Switchblade Knife Act is not facially unconstitutional because it can be validly applied on military bases and courthouses, even though it does not mention such places. Its ban on crossing state lines with such arms operates essentially as a ban on them. (If truth be told, the law was a silly reaction to use by fictional gangs of push-button knives in movies like Rebel Without a Cause and West Side Story.)
Such decisions and arguments are completely adverse to how the Supreme Court decides Second Amendment cases. Heller declared D.C.'s handgun ban unconstitutional even though it said in dicta that bans on handguns in felons' possession or in schools were presumptively valid. The Court confirmed in City of Los Angeles v. Patel (2015) that Heller involved a "facial challenge." And in Bruen, the Court wrote that "there is no historical basis for New York to effectively declare the island of Manhattan a 'sensitive place' simply because it is crowded and protected generally by the New York City Police Department." Or because it is filled with courts and schools, where firearms may not be carried.
By contrast, Rahimi held that the ban on gun possession by a person found by a court to represent a credible threat to the physical safety of an intimate partner or child is not facially unconstitutional. Nor was the Bail Reform Act upheld in Salerno, because it required the court to find with clear and convincing evidence that no release conditions of an arrestee will reasonably assure the safety of any other person and the community. Both laws require a judicial finding of specific persons of dangerousness. In other words, in both cases the laws required a finding of the key constitutional facts.
By contrast, some lower courts have invented hypothetical statutes and then assert that because the hypothetical statute that the legislature could have enacted (but did not) would be constitutional under the Second Amendment, then the actual, real-world statute is also constitutional for the same reasons. Not only is this not what Salerno or Rahimi said, but it also violates the separation of powers because such courts purport to rewrite a statute into a new one that does not exist.
At bottom, whether a firearm prohibition facially violates the Second Amendment raises two questions. First, what are the elements of the offense of the law at issue? Second, does the crime as defined survive Second Amendment scrutiny as decided by Heller, Bruen, and Rahimi? Conjuring up a parade of horribles of activities beyond what the statute encompasses is not part of that exercise.
Dismissal of Second Amendment challenges based on an overly-formal dichotomy between facial and as-applied characterizations misunderstands how the Supreme Court sees the differences. As the Court explained in Citizens United v. Federal Election Comm'n (2010), "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge." Instead, "it goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint." Wolford poses an appropriate opportunity for the Court to bring lower courts in line with its Second Amendment jurisprudence.
For further analysis explaining why cases like Antonyuk and Lafave have erred in their approach to facial challenges, see Peter A. Patterson, Facial Confusion: Lower Court Misapplication of the Facial/As-Applied Distinction in Second Amendment Cases, 19 Harv. J. L. & Pub. Pol'y Per Curiam 1, 2 (2025). Mr. Patterson is my co-counsel on a cert petition being filed in LaFave.
