Until it recently concluded that California’s “1-in-30” gun rationing scheme violated the Second Amendment, the Ninth Circuit had a streak of more than 50 cases where the appellate court upheld gun control laws facing legal challenges, helping to cement its reputation as the circuit court most hostile to our right to keep and bear arms.
The Fourth Circuit Court of Appeals, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia, is giving the Ninth Circuit a run for its money in terms of anti-gun rulings. In the past few years the court has upheld bans on so-called assault weapons and “large capacity” magazines, Maryland’s Handgun Qualification License that subjects would-be pistol owners to mandatory training and a live-fire test at a range, and the federal prohibition on handgun sales to adults younger than 21.
Now the appellate court has given gun control activists another victory by upholding Fairfax County, Virginia’s ban on lawful concealed carry in county parks; ruling the ordinance doesn’t violate the Second Amendment.
In its opinion released today, a three-panel also concluded that the plaintiffs lacked standing to challenge another county ordinance banning concealed carry on “any public street, road, alley, or sidewalk or public right-of-way or any other place of whatever nature that is open to the public and is being used by or is adjacent to a County-permitted event or an event that would otherwise require a County permit,” leaving that prohibition in place as well.
The panel declared that the fact that plaintiffs brought a facial challenge against the carry ban in parks “dooms their effort,” since they must show that “no set of circumstances exists under which the [challenged regulation] would be valid.”
Pivotally, the County operates three preschools on park property, and a third party runs a preschool program in a park. The County also “offers drop-in daycare” at two recreation centers on park property.
… We conclude that the parks restriction is constitutional as applied to the three preschools and one preschool program on park property. If a person were cited under the County’s ordinance for bringing a gun to one of these locations, the citation would withstand Plaintiffs’ Second Amendment challenge. That’s enough for us to reject the facial challenge to the parks restriction.
That presumably leaves the door open to as applied challenge to the ban in parks that don’t have preschools on the premises, but it also gives Fairfax County the opportunity to cement the ban by offering “drop-in daycare” at every park that has a rec center.
Keep in mind that these parks are pretty big. Riverbend Park, where one of the preschools is located, offers “over 400 acres of forest, meadows, and ponds,” for example. If there is an as-applied challenge going forward, would the Fourth Circuit declare the entirety of the park can be off-limits to concealed carry, not just the building where the preschool is located? What about when the preschool isn’t in operation?
Those questions will have to wait another day, unfortunately, since the panel leaned on the facial nature of the challenge.
The panel also concluded that, despite the existence of an ordinance banning them from lawfully carrying on county property that is being used or adjacent to public events, the plaintiffs have little risk of prosecution for violating the ordinance.
The ordinance requires notice of its requirements to be posted in places where itapplies. As to the events restriction, the ordinance requires notice “at all entrances or other appropriate places of ingress and egress” in a regulated place.
The County has disavowed any intent to enforce the ordinance when no notice has been posted. To that end, the County’s Chief of Police has prohibited officers from “enforc[ing] the provisions of [the] ordinance [without] first confirming that signs providing [the required] notification are properly posted.”
… The bottom line is that the County won’t enforce the events restriction without first informing people (via proper notice) that they risk violating it. This conservative approach to enforcement is borne out in the Plaintiffs’ declarations, which indicate that they carried firearms in public in Fairfax County both before and after the ordinance’s enactment. In other words, Plaintiffs haven’t changed their behavior because of the events restriction.
Plaintiffs’ theory of standing rests on their fears of unwittingly violating the events restriction. For example, they assert they’re “left to guess” what qualifies as an area “adjacent” to a regulated place, and they “have no way of knowing whether [they] will be adjacent to” regulated property. They also say they don’t “know [they] are in an area adjacent to an event that is permitted or should have a permit” while driving.
But Plaintiffs have identified no situation where their lack of awareness is likely to result in their prosecution, considering the ordinance’s notice requirement and the County’s pronouncements that any enforcement would only follow proper notice. And Plaintiffs’ fears that they may accidentally violate the events restriction by driving through an event with a firearm are belied by the uncontested fact that public roads are “controlled by the Virginia Department of Transportation” and thus not subject to the ordinance. Plaintiffs therefore haven’t demonstrated the “credible threat of prosecution” necessary to bring a pre-enforcement challenge to the events restriction.
Now, I’d say the fact that VDOT controls public roads and the county’s ordinance prohibits concealed carry on “public streets” and roads, at least in some circumstances, should make that ordinance null and void, but the panel declined to take that step. The only silver lining in the decision is the court’s statement that public roads aren’t subject to the ordinance, which at least provides a slight bit of relief to the plaintiffs.
My hope is that we’ll see another lawsuit that offers an as-applied challenge to the park ban that seeks to overturn the ordinance as it applies to those portions of parks that don’t have daycares or preschool facilities on site, as well as challenging the ban when those facilities aren’t in use as a school. Given the Fourth Circuit’s hostility towards the Second Amendment the court may find another excuse to uphold the ordinance in its entirety, but the rationale deployed today at least opens the door to further litigation.
Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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