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I was always sort of told that the constitutionality of a law could not be tested except by a "real" case. In other words, you had to violate a law to get it tested in court, and thereby risk jail time or other criminal penalties.

However, I saw today that somebody in New York seems to have found a way to test the constitutionality of a law without breaking it. In the news article it says he is the "plaintiff", not a defendant, so apparently there is a way to sue to challenge a law's constitutionality. Is this something particular to New York, or is it possible to do whatever this guy did in other states, too?

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In this case the Plaintiff, James Maloney, has previously been charged with a crime for possession of nunchucks. He is apparently suing to enjoin further enforcement of the law under which he was previously charged.

US Federal courts will only take up a "case or controversy", which means an issue where actual, not theoretical rights are at stake, and in order to vindicate a constitutional right, it must either have previously been violated, or there must be a plausible and immediate threat to it.

Claiming that a law is unconstitutional as part of a defense to a charge of violating that law is a common and probably the best known method of challenging a law (or a government action) for unconstitutionality. But there are other ways. One way is to apply for an injunction against enforcement of the law. That is the procedure that was followed in, for example, the recent case where there was a ruling against the ADA in a district court. In order to use that procedure, the plaintiff must present evidence that there is a credible threat that the law will be invoked against him (or her) if the action which the plaintiff claims is protected by a constitutional right is taken.

In short, one need not put oneself in a position where one goes to prison or is found guilty of a crime if one loses the case to challenge the constitutionality of a law or of a government policy or action. But one must establish that it is a real "case or controversy", with real parties in opposition to each other, and real rights at stake, not a mere law student's exercise, nor a collusive case, with both "sides" having the same actual goal.

In the case reported, the previous criminal charge helps to establish that this is a real issue.

  • By the way, I can't at the moment find an online transcript of the decision, which might address the issue of standing to bring this case. – David Siegel Dec 18 '18 at 2:52
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I believe that "real" cases in your question refer to cases that are of "live" controversies. Federal courts can adjudicate a case only if it is of live controversies so as to avoid issuing advisory opinions, due to the requirement of US Constitution Article III. For the sake of your question, the relevant doctrine here relates to ripeness: A case "is not ripe for adjudication if it rests upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all.' " Texas v. United States, 523 U.S. 296 (1998)

However, there are exceptions to this doctrine: If the petitioner can demonstrate substantial hardship to justify judicial review before the actual enforcement of the law in question takes place, the case would be deemed ripe. In your question, the New York case is ripe (and is thus justiciable) because "violations of [the law] carry heavy criminal and civil sanctions" and the plaintiff "would risk serious criminal and civil penalties" if he chose to violate the law. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) This is not particular to New York, but is applicable throughout at least the US federal jurisdiction.

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