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. …
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.
— Stephen Halbrook in Second Amendment Roundup: 4th Circuit Upholds Park Ban
I don’t understand the third paragraph–even after reading it twice.
The 4th circuit concluded because there were *some* places in Fairfax County Parks (specifically, 3 pre-schools) where carrying of firearms were being prohibited as those were “sensitive” places, that the challenge to prohibiting firearms in *all* parks in Fairfax County could not stand facially. [I am not a lawyer, but a facial challenge says there are no scenarios where the law is unconstitutional or otherwise invalid].
The 3rd para is saying that the Bruen decision did not apply that same facial “standard” and instead (basically) said because there are (some) areas where the law is unconstitutional or otherwise valid, it withstands a facial challenge. IE, the complete opposite of what the 4th circuit applied.
The point here is that using the 4th’s reasoning, because there is “one place in Fairfax County Parks [and thus, technically, anywhere in Fairfax County] that represents a sensitive place, it is constitutional to prohibit firearm possession in ALL Fairfax County Parks”. And the last paragraph expresses that by that logic, FFX County could ban in their entire county, or a State could ban in their entire State.