As Applied?
B.L.U.F.
What is the difference between an as applied challenge and a facial challenge to law?
(1550 words)
In Antonyuk v Hochul, the plaintiffs challenged parts of New York’s CCIA on facial grounds. This is to say, they claimed that the challenged legislation is always unconstitutional.
For example, it has been established that a ban on all handguns is unconstitutional. There is no case in which it would be considered constitutional. The state argues around the fringes, if a ban on all handguns is unconstitutional, how about a ban on some guns?
Consider a different civil right, a right protected by the constitution, the right to assemble for free speech.
In my town we have a commons. It has a pretty gazebo and during the summer months they will have open air concerts and art festivals and discussions and all sort of assemblies. If I want to show up and start playing my fiddle (badly) at the gazebo, there is no issue.
On the other hand, if I would like to have an ‘event’, I need a permit.
The first question asked is, “Does this touch fingers with a core civil right?” The answer to that is an unequivocal “YES”.
Since the proposed conduct, having an event on the public commons, implicates the plain text of the First Amendment, it meets the first prong of a facial challenge.
Permitting is well established, so only a lawyer interested in fleecing me would take the case, but assume it got into court.
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