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.

I would not need any experts. It is the government’s burden to show that there is a history and tradition of permitting for assemblies. If they cannot show a distinct match from history, they must provide a means-end balance that does not infringe on my core civil rights.

This is actually fairly easy for the government to do.

Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions. As regulation of the use of the streets for parades and processions is a traditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places. Lovell v. Griffin, 303 U.S. 444, 451; Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 516; Schneider v. State, 308 U.S. 147, 160; Cantwell v. Connecticut, 310 U.S. 296, 306, 307.
Cox V. New Hampshire, 312 U.S. 569, 574–75 (1941)

Notice the words traditional exercise of control. This is the same history and tradition of Heller as affirmed by Bruen. My understanding is that there are many opinions that use this sort of logic, these sorts of words.

The government is allowed to infringe on my freedom of speech as long as it is a time and manner restriction and not content based. Even in the realm of speech, there are still content restrictions, those are real images of sequences of images (movies/video) of children in pornographic depictions.

Can you yell fire in a crowded theater? Of course, you can. You would be expected to raise the alarm if you saw a fire break out in a theater. The actual quote, used by the people that want to censor or infringe, was part of the dicta of a Supreme Court opinion from the WWI era. Those leftist idiots are actually holding up the logic one justice used to justify censoring leftist speech.

So, the government can restrict my speech as long as it is a time and manner restriction. This means that they can stop me from speaking in the middle of Main street during rush hour. What they cannot do, is to restrict my speech based on content.

If I tell them I want to do a pro-2A rally, and they deny me, I can challenge that in court as a violation of my constitutionally protected rights. The law itself is not unconstitutional. It is only as they applied it to me.

If, in court, I can prove that the permit was denied based on the content of my speech, pro-2A, then I win the as applied constitutional challenge.

It took many years of these “as applied” wins before the state backed down and started doing free speech correctly. Even today, as the state attempts to censor more and more speech, they try to color inside the lines set down by the courts.

The difficult part of a facial challenge is that the law must be proven to be unconstitutional, always. To win the challenge, the state only has to prove that there is one situation where the infringement has a history and tradition.

In Antonyuk v. Hochul, the Second Circuit did the work for the state. I do not remember reading or hearing any arguments from the state that the law was constitutional because there were cases where it would be. They argued the entire law was constitutional in all situations.

Dinesh D’Souza talks about the claim he makes in one of his movies. “At the time of the civil war, no Republican owned slaves.”

He points out that all his opponents needed to do to prove him wrong, was to document a single case of a Republican owning a slave at the start of the Civil War. His challenge has stood the test of time. The closest anybody got was that Grant’s wife inherited a slave. The Grants then freed that slave. Technically, they were Republicans. Technically, they owned a slave. Furthermore, technically, they had freed that slave before the start of the civil war.

This is all the state needed to do. To provide one instance of history and tradition which their infringement matched. If they had done that, then they would have succeeded. The state did not, they could not.

The Second Circuit then twisted definitions. We have agreed, as a society, that dangerous people can be disarmed. If a person is a threat to themselves or others, then they can be disarmed.

Why do we use that language, over and over again? “A threat to themselves or others”? It is because that is a legal definition. There are legally recognized methods to determine that a person is a threat to themselves or others. All the legally recognized methods end with a commitment.

You are found guilty of murdering somebody? You are deemed a threat to others, we lock you away. While you are locked away, you are supposed to be disarmed.

Did you start making crazy threats? They pick you up on a 72-hour hold, and they can find you a threat to yourself or others, and you can be committed, involuntarily.

This is an objective fact. You are incarcerated or you are committed. A more nuanced issue is: What happens after you are released? Are you still a threat to yourself or others?

If you are still a threat to yourself or others, why are you being let out?

Still, the question remains a question of objective fact. Have you ever been incarcerated or committed?

The Second Circuit decided that the magically powered examiners would be able to look into their crystal balls and determine that somebody is a threat to themselves or others. They can do this without all the pomp and circumstances of a trial or a medical evaluation. They, as GS-3s (or equivalent), have the power to discern your level of threat.

The Second Circuit says that this is acceptable. They know that some people will have their rights trampled. If your rights are trampled, then you can ask a GS-4 to overrule the GS-3. And if that doesn’t work, you can hire a lawyer, at your expense, to challenge the law, as it was applied to you.

And if you are not a threat to yourself or others, and you can prove it, then in only a couple of years, you can get your right back. Of course, there is nothing to keep the state from denying or revoking your permission slip as often as they want.

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