Introduction
Following the Supreme Court’s invocation of United States v. Salerno[1] to defeat a Second Amendment claim in United States v. Rahimi,[2] lower courts have begun misapplying the distinction between facial and as-applied challenges to reject Second Amendment claims. Antonyuk v. James[3] is a prime example. There, the Second Circuit reviewed an order that had preliminarily enjoined a New York law that criminalized carrying a firearm in public parks. The Second Circuit vacated the injunction, but it did not conclude that the State was likely to succeed in showing that banning guns in parks generally is consistent with the Nation’s history of firearm regulation. Rather, the court seized on the “facial” nature of the plaintiffs’ challenge to conclude that the injunction should be vacated. In the court’s telling, a facial challenge requires a challenger to show that a law “is unconstitutional in all its applications,”[4] and the Antonyuk plaintiffs were unlikely to succeed in doing so because the State had shown “a well-established and representative tradition of firearm regulation in often-crowded public squares such as urban parks.”[5] Indeed, the court was clear that it only needed to assess whether New York’s park ban was likely constitutional “insofar as the regulation prohibits firearms in urban parks” to sustain the law.[6] Thus, the court concluded, the plaintiffs were unlikely to succeed in their facial challenge because “the law has a plainly legitimate sweep as to urban parks,” although “doubt[ing] that the evidence presently in the record could set forth a well-established tradition of prohibiting firearm carriage in rural parks.”[7]
Having concluded that the State had shown a likelihood of success in supporting a ban on firearms in urban parks, the court considered its job done in evaluating the plaintiffs’ facial challenge.[8] Thus, the court never asked whether the State had demonstrated that banning carry in parks generally is consistent with the Nation’s history of firearm regulation.[9] By failing to make this broader inquiry, the court did not properly analyze the facial claim before it.
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[1] 481 U.S. 739 (1987).
[2] 144 S.Ct. 1889, 1898 (2024).
[3] 120 F.4th 941 (2d Cir. 2024).
[4] Id. at 983.
[5] Id. at 1026.
[6] Id. at 1019.
[7] Id. at 1025.
[8] See Antonyuk, 120 F.4th at 1025–26.
[9] Antonyuk is not a one-off decision. The Fourth Circuit, to take another example, recently rejected a challenge to Fairfax County, Virginia’s ban on guns in parks. The court concluded that the ban was constitutional at least “as applied to the three preschools and one preschool program on park property,” a conclusion the court determined “doom[ed]” the plaintiffs’ facial challenge to the ban. LaFave v. County of Fairfax, Va., — F.4th –, 2025 WL 2458491, at *5 (4th Cir. 2025); see also, e.g., Wolford v. Lopez, 116 F.4th 959, 983–84 (9th Cir. 2024).