The issue has arisen in recent Second Amendment litigation of whether plaintiffs' challenges to restrictions are cognizable facially or only as-applied. On June 25, the question arose at the Second Circuit's oral argument in Christian v. James, 25-384-cv, an appeal of the district court's upholding of New York's ban on firearms in public parks. Referring to a prior precedent, the district court wrote: "In Antonyuk, the Second Circuit rejected the plaintiffs' facial challenge on the parks' issue, but recognized a potential distinction between urban and rural parks – to be decided, presumably, on an as-applied challenge."
Like other jurisdictions, New York relies on the Supreme Court's statement in United States v. Salerno (1987) that "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." Tony Salerno was the "boss" of the Genovese crime family who participated in murder conspiracies. He thus couldn't exactly challenge the Bail Reform Act as applied himself.
In Christian, New York's attorney argued that "if 99% of a law is unconstitutional, but is 1% ok," it is valid because it has a constitutional application. But the question is whether the law at issue, not some other actual or theoretical law, can be constitutionally applied based upon the historical record supplied by the government. Indeed, that is the principle that synthesizes the Supreme Court's decisions in Heller and Rahimi.
