Schools Within Parks Sustain Firearm Bans on Facial Review; Signage-Based Enforcement Defeats Pre‑Enforcement Standing — A Structured Commentary on LaFave v. County of Fairfax (4th Cir. 2025)

Introduction

In LaFave v. County of Fairfax, Virginia, the United States Court of Appeals for the Fourth Circuit addressed two contemporary Second Amendment disputes arising from a Fairfax County ordinance restricting firearms in designated public spaces. The plaintiffs — three lawful gun owners — mounted (1) a facial Second Amendment challenge to the County’s prohibition on carrying firearms in county parks, and (2) Second and Fourteenth Amendment challenges to a separate “events” restriction that bars firearms in public places used by, or adjacent to, County-permitted events.

The district court upheld both restrictions on summary judgment. On appeal, the Fourth Circuit affirmed in part and vacated in part. It held that the facial challenge to the parks restriction fails because, at a minimum, the County may constitutionally prohibit firearms on school property — including preschools — located within parks. Conversely, the court vacated the merits ruling on the events restriction, concluding the plaintiffs lacked Article III standing for a pre-enforcement suit where the ordinance requires posted notice and the County disavowed enforcement in the absence of such notice. The court remanded with instructions to dismiss the events claims without prejudice.

The opinion, authored by Chief Judge Diaz and joined by Judges Gregory and Agee, offers two important guideposts: (1) a practical blueprint for evaluating facial Second Amendment challenges under the sensitive places doctrine; and (2) a rigorous articulation of pre-enforcement standing in firearms cases where governments employ signage requirements and enforcement limits.

Summary of the Judgment

Parks restriction (Second Amendment, facial challenge): Affirmed. The court held the ordinance is constitutional in at least one application — banning firearms at preschools and a preschool program located on park property — which suffices to defeat a facial challenge under the stringent “no set of circumstances” standard. The court relied on repeatedly stated Supreme Court dicta recognizing schools as sensitive places where firearm prohibitions are permissible.
Events restriction (Second Amendment and Fourteenth Amendment vagueness): Vacated and remanded with instructions to dismiss without prejudice for lack of Article III standing. Because the ordinance requires posted notice at entrances and the County’s enforcement guidance disavows enforcement absent proper signage (and because state-controlled roads are excluded), plaintiffs did not show a concrete plan to violate the law or a credible threat of prosecution.
Sensitive places analysis: The court declined to resolve where “sensitive places” fits within the Bruen framework (plain text vs. historical tradition steps) because the plaintiffs’ claims failed regardless.

Analysis

Precedents Cited and Their Influence

The court’s reasoning is anchored in the Supreme Court’s modern Second Amendment trilogy and key Fourth Circuit en banc decisions:

District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010): Heller recognized an individual right to keep and bear arms while emphasizing the right is not unlimited. Both Heller and McDonald repeatedly signaled (in dicta) that prohibitions in “sensitive places such as schools and government buildings” remain presumptively valid.
New York State Rifle & Pistol Association v. Bruen (2022): Reaffirmed that the Second Amendment protects public carry for self-defense and introduced the historical tradition test to evaluate modern regulations. Bruen recognized “legislative assemblies, polling places, and courthouses” as historically sensitive and permitted analogical reasoning to identify “new and analogous sensitive places,” while rejecting overbroad designations (e.g., all crowded urban spaces).
United States v. Rahimi (2024): Clarified that a regulation survives if it is constitutional “in some of its applications,” reinforcing the principle that a facial challenge fails if the law is valid in any substantial context.
United States v. Price (4th Cir. en banc 2024) and Bianchi v. Brown (4th Cir. en banc 2024): These decisions restated the two-step Bruen framework: first, whether the conduct falls within the Second Amendment’s text; second, whether the regulation accords with the Nation’s historical tradition. Bianchi also explained the analogical approach — asking whether modern and historical regulations impose comparably justified burdens.
Maryland Shall Issue, Inc. v. Moore (4th Cir. en banc 2024): Described school-based firearm prohibitions as “presumptively constitutional,” tracking the Supreme Court’s repeated dicta and shaping the LaFave panel’s comfort in treating schools-on-park-property as a dispositive application.
United States v. Canada (4th Cir. 2024): Emphasized that where a statute is constitutional in some applications, a facial challenge fails — a principle central to the court’s disposition of the parks claim.
Susan B. Anthony List v. Driehaus (2014); Babbitt v. United Farm Workers (1979): Articulated pre-enforcement standing standards — a plaintiff must intend to engage in arguably proscribed conduct and face a credible threat of prosecution.
Spokeo, Inc. v. Robins (2016); Maryland Shall Issue, Inc. v. Hogan (4th Cir. 2020); John & Jane Parents 1 v. Montgomery County Board of Education (4th Cir. 2023): Provided standing doctrine fundamentals and cautioned against speculative chains of harm.
Fusaro v. Cogan (4th Cir. 2019) and Hengle v. Treppa (4th Cir. 2021): Instruct courts to give “great weight” to repeated Supreme Court dicta — a point the panel leverages to treat school-based firearm prohibitions as presumptively valid.
Antonyuk v. James (2d Cir. 2024): Cited to show caution against line-drawing in facial challenges to park restrictions; LaFave likewise avoids a sweeping pronouncement about all park spaces.

Collectively, these authorities permitted the court to resolve the parks claim on a narrow ground consistent with both the sensitive places doctrine and the rigorous demands of facial challenges, while tightening the prerequisites for pre-enforcement standing in the events context.

Legal Reasoning

1) Facial challenge to the parks restriction

The plaintiffs chose to proceed facially — a tactically demanding path. Under Salerno and Rahimi, a facial challenge fails if the law is constitutional in any of its applications. The record established that Fairfax County operates three preschools and hosts an additional preschool program on park property. Because the Supreme Court has repeatedly indicated that schools are sensitive places where firearms bans are permissible, the Fourth Circuit treated firearm prohibitions on school premises as “presumptively constitutional,” aligning with its en banc reasoning in Moore.

Crucially, the panel did not resolve whether parks are categorically sensitive places. Instead, it held that because at least one obvious, historically grounded sensitive place (schools) exists within the regulated space (parks), the ordinance has constitutional applications. That alone defeats a facial challenge — no further inquiry into playgrounds, child-focused programming, or the general status of parks was necessary.

The court also rejected the plaintiffs’ attempt to analogize to Bruen’s statewide licensing regime. Bruen involved a pervasive precondition to public carry everywhere, with no valid application in sensitive places; here, by contrast, the County’s rule is constitutional as to school premises within parks. The facial challenge therefore fails.

2) Standing to challenge the events restriction (Second and Fourteenth Amendments)

To sue pre-enforcement, plaintiffs must allege a concrete plan to engage in arguably prohibited conduct and demonstrate a credible threat of prosecution. The events restriction here applies only on County-controlled property (excluding state-controlled public roads) and requires posted notice “at all entrances or other appropriate places of ingress and egress.” The Chief of Police has directed officers not to enforce the ordinance absent confirmation of proper signage; officers are trained to verify signage before taking action. Plaintiffs produced no evidence contradicting these instructions or showing they had altered their conduct or encountered posted notices.

Plaintiffs argued they feared accidentally violating the ordinance while driving through or being near permitted events. The County’s concessions undermined these fears: most roads are controlled by the Virginia Department of Transportation and fall outside the ordinance; and without posted signs, there will be no enforcement. Because plaintiffs did not identify a specific intent to carry in a signed, covered location or a plausible, imminent risk of enforcement, their fears were deemed speculative. Without a concrete plan and credible threat, there is no Article III injury-in-fact, and the claims must be dismissed without prejudice.

3) The “sensitive places” doctrinal placement in the Bruen framework

The panel noted an unresolved point of analysis: whether sensitive places are excluded at Bruen’s “plain text” step or justified at the “historical tradition” step. Citing divergent views (including a concurrence in Price), the court declined to decide because the plaintiffs’ claims failed either way — the parks restriction survives on facial review, and the events claims fail for lack of standing.

Impact and Forward-Looking Implications

Facial challenges to park firearm bans face a higher bar where schools or preschools sit on park property. Governments can fortify park restrictions by documenting school facilities within parks, enabling courts to dispose of facial challenges without reaching broader, unsettled questions about parks as “sensitive places” per se.
Pre-enforcement standing will be harder to establish where an ordinance: (a) confines application to property controlled by the regulating authority; (b) requires clear, posted notice at points of ingress/egress; and (c) includes official enforcement guidance disavowing arrests absent signage. Plaintiffs will need concrete plans to carry in specific, signed locations and evidence of a credible threat of prosecution.
As-applied challenges remain viable. LaFave does not decide whether non-school areas of parks are sensitive places. Future litigants might bring targeted as-applied claims focused on particular park settings or activities, times, or distances from school premises, rather than global facial attacks.
Government best practices: Maintain robust signage programs, clear enforcement protocols, and record ownership/control boundaries. These measures both aid constitutional notice and reduce exposure to pre-enforcement suits.
Litigation strategy for plaintiffs: To establish standing, identify specific events and locations with posted signage where you intend to carry; document attempts to enter those areas; and show that enforcement is likely. Abstract fears, especially about unknowingly violating restrictions while driving on non-covered roads, are insufficient.
Weight of Supreme Court dicta: LaFave underscores that repeated Supreme Court dicta can carry substantial force, particularly regarding schools as sensitive places — a signal that lower courts may treat such dicta as creating a strong presumption of constitutionality that challengers must meaningfully rebut.

Complex Concepts Simplified

Facial vs. as-applied challenges:
- Facial challenge: Asserts a law is unconstitutional in all or nearly all of its applications. It fails if the government can show even one constitutionally valid application.
- As-applied challenge: Targets the law’s application to specific facts or contexts. Often easier to prove because the plaintiff need not negate every conceivable application.
Sensitive places doctrine:
- Rooted in Heller, elaborated in Bruen. Allows firearm prohibitions in designated locations historically recognized as sensitive (e.g., schools, courthouses) and in modern places sufficiently analogous to those.
- Not a license to declare broad swaths of public space (e.g., a whole city) “sensitive.”
Bruen’s two-step test:
- Step 1: Does the Second Amendment’s plain text cover the person, weapon, and conduct?
- Step 2: If yes, is the restriction consistent with the Nation’s historical tradition of firearm regulation, assessed through analogical reasoning about burdens and justifications?
The precise placement of “sensitive places” within this test remains debated; LaFave sidesteps the issue.
Pre-enforcement standing:
- A plaintiff can sue before being prosecuted if they (1) intend to engage in conduct arguably prohibited and (2) face a credible, non-speculative threat of enforcement.
- Signage requirements, clear enforcement disavowals, and exclusions (e.g., roads outside the regulator’s control) can negate a credible threat.
Weight of Supreme Court dicta:
- While not binding holdings, repeated Supreme Court statements can be afforded “great weight.” In the Second Amendment context, dicta consistently recognizing schools as sensitive has real operative effect in lower courts.

Conclusion

LaFave v. County of Fairfax refines two critical aspects of contemporary Second Amendment litigation. First, it demonstrates that a firearm ban applicable within parks survives a facial challenge where the record shows the presence of school facilities on park property — because schools are a paradigmatic sensitive place, repeatedly acknowledged by the Supreme Court, the ordinance has at least one constitutional application. Second, it tightens pre-enforcement standing by emphasizing that posted notice requirements, formal enforcement disavowals absent signage, and jurisdictional limits (like state-controlled roads) can defeat any credible threat of prosecution when plaintiffs cannot identify specific, intended conduct in covered areas with posted signs.

The decision leaves open whether non-school features of parks — such as playgrounds or child-centered programming — independently justify sensitive-place status. It also invites more precise as-applied litigation. For governments, it highlights the value of objective notice and disciplined enforcement. For challengers, it underscores the need for concrete, imminent plans and facts, not generalized fears. Above all, LaFave illustrates how facial challenges and standing doctrine coalesce to shape the practical boundaries of the sensitive places doctrine in the post-Bruen era.

Disposition: Affirmed in part (parks restriction); vacated in part (events restriction) and remanded with instructions to dismiss the events claims without prejudice for lack of standing.