11/19/2025

In the post-Heller and post-Bruen era, the Supreme Court has made the Second Amendment’s meaning unmistakably clear: the right to keep and bear arms cannot be treated as a second-class right. Yet in many blue-state jurisdictions, lower courts are finding new ways to limit gun rights despite that guidance.

Today, two major tactics are shaping this resistance.

1. The “Facial Challenge” Game

Some courts are misusing the Salerno rule, which requires a law to be unconstitutional in all applications for a facial challenge to succeed. Instead of evaluating the actual statute, judges are inventing hypothetical, narrower versions of gun laws to save them.

Example: Fairfax County, VA

  • The county banned guns in all 420 parks.
  • Only four parks have preschools.
  • The Fourth Circuit used those four parks to uphold a county-wide ban—imagining a version of the law the legislature never wrote.

This contradicts Heller, where the Supreme Court struck down D.C.’s handgun ban even while acknowledging other permissible restrictions. Courts must evaluate the law as written, not rewrite it to uphold it.

2. Mislabeling Legislative Facts as Adjudicative Facts

This tactic forces gun owners into long, expensive litigation.

  • Legislative facts determine constitutionality (history, tradition).
  • Adjudicative facts deal with case-specific details (witnesses, experts, trials).

Supreme Court Second Amendment cases—Heller, McDonald, Bruen, Caetano, Rahimi—never required trials or expert testimony. They relied solely on legislative facts. But many lower courts now demand full evidentiary records, delaying decisions for years and leaving unconstitutional laws in place.

These tactics—rewriting laws and dragging cases out—create obstacles designed to weaken the Second Amendment without openly defying the Supreme Court. Following Bruen means:

  • Courts must evaluate statutes as written
  • Constitutional questions must rely on legislative facts, not trial-style litigation

Only then can the Second Amendment receive the full protection the Supreme Court intended.