The Facial vs. As-Applied Quagmire

The issue has arisen in recent Second Amendment litigation of whether plaintiffs’ challenges to restrictions are cognizable facially or only as-applied.  On June 25, the question arose at the Second Circuit’s oral argument in Christian v. James, 25-384-cv, an appeal of the district court’s upholding of New York’s ban on firearms in public parks.  Referring to a prior precedent, the district court wrote: “In Antonyuk, the Second Circuit rejected the plaintiffs’ facial challenge on the parks’ issue, but recognized a potential distinction between urban and rural parks—to be decided, presumably, on an as-applied challenge.”

Like other jurisdictions, New York relies on the Supreme Court’s statement in United States v. Salerno (1987) that “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”  Tony Salerno was the “boss” of the Genovese crime family who participated in murder conspiracies.  He thus couldn’t exactly challenge the Bail Reform Act as applied himself.

In Christian, 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. But the question is whether the law at issue, not some other actual or theoretical law, can be constitutionally applied based upon the historical record supplied by the government. Indeed, that is the principle that synthesizes the Supreme Court’s decisions in Heller and Rahimi.

In Heller, the Supreme Court held that the District of Columbia’s ban on possession of handguns was facially unconstitutional under the Second Amendment. The Supreme Court confirmed in City of Los Angeles v. Patel (2015) that Heller involved a “facial challenge[ ].” And Heller declared D.C.’s ban facially unconstitutional despite the Court’s dicta that a ban on possession of machine guns—presumably including fully automatic handguns—would be permissible. The Court did not reject Mr. Heller’s facial claim because D.C. may have been able to ban a subset of handguns through a more targeted statute.

Under Heller, then, the fact that New York (for the sake of argument) may be able constitutionally to ban the possession of firearms in urban parks does not save from facial invalidity New York’s ban on the possession of firearms in all parks, any more than D.C.’s presumed ability to ban fully automatic handguns saved from facial invalidity its attempt to ban all handguns.

Rahimi superficially appears to complicate the analysis, as there the Supreme Court invoked Salerno and held that the federal statute banning possession of firearms by a person subject to a domestic violence restraining order is constitutional at least with respect to persons who were determined to pose a threat of physical violence to another and therefore is not facially unconstitutional. But, critically, the statute at issue in Rahimi, 18 U.S.C. § 922(g)(8)(C), did not just happen to sweep up persons against whom such findings had been made, but instead specifically applied to persons subject to two different types of orders: (i) those including “a finding that such person represents a credible threat to the physical safety of [an] intimate partner or child,” as well as (ii) those that simply “explicitly prohibit[ ] the use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury.” As Rahimi held, “the Government offers ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” Thus, since subparagraph (i) was consistent with this principle, the Court could uphold Section 922(g)(8) facially without determining whether the statute would be constitutional as applied to orders that satisfied only subparagraph (ii).

Rahimi does not support the facial validity of New York’s park ban, because in no circumstance would the government be required to prove as an element of the offense that a person possessed a firearm in an urban park—in other words, there is no separate subsection of the statute that applies specifically to urban parks. For Rahimi to support New York, the state’s law would have to say something like, “firearms are prohibited in (a) urban parks, and (b) all other parks.” But New York did not adopt that statute, and its general ban on guns in parks is therefore facially unconstitutional.

This exact same issue came up in LaFave v. Fairfax County, which I argued in the Fourth Circuit on May 7.  Fairfax County’s public parks consist of mostly woodlands twice the acreage of Manhattan.  The County argued “not invalid in all circumstances” because tiny parts are used for schools and playgrounds.  But the County banned guns in all of the public parks, not in discrete segments it deemed “sensitive.”  Not to mention that guns are separately banned in schools by laws specifically on point.

The bottom line: The Supreme Court in Heller held that D.C.’s ban on handguns was facially unconstitutional despite the fact that the District may have been able to draft a valid, narrower statute that outlawed only a subset of handguns (i.e., fully automatic handguns). Similarly, the Second Circuit in Christian should hold that New York’s parks ban is facially unconstitutional, even if the State may have been able to draft a valid, narrower statute that outlawed firearms in only a subset of parks (i.e., urban parks).

And note that this is in no way inconsistent with Salerno: because a general ban on firearms in parks is unsupported by history, such a ban is invalid in all of its applications, just as a general ban on handguns is invalid in all of its applications. Of course, I disagree with the premise that history does support banning firearms in urban parks, but for the reasons explained here the Second Circuit need not reach that question to hold the State’s ban on guns in all parks facially unconstitutional.