For those (like me) who were terribly disappointed in the wiggly, intellectually barren and doctrinally bankrupts decision in D.C. v. Heller, take heart. The Second Circuit decision in Maloney v. Cuomo is the closest thing yet to a perfect set up for the Supremes to give the Second Amendment a real thumbs up or not.
The appeal seeks declaratory relief holding that New York law prohibiting the possession of “chuka sticks” (a/k/a nunchucks for you Wii users) in one’s home is unconstitutional as violative of the 2d Amendment, as well as irrational. Nope, says the Circuit. Not until the Supreme Court holds that its Heller decision applies to the states.
Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we “must follow Presser” because “[w]here, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.’” Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not violate the Second Amendment.
So there you have it. In the home, chukka sticks (not a pistol, but better than a machine gun) and New York to boot. It doesn’t get better than this.
Back to you, Nino.
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If this is appealed (dunno; hope so) and if SCOTUS takes it (dunno; doubt it), I can see two ways for them to avoid using this case to explicitly incorporate the Second Amendment:
1. Reject the dismissal of the 14 Amendment claim and accept the lack of rational basis argument, or send it back for further bickeri — err, argument. We’re talking about a couple of friggin’ sticks, here, after all, and some chickenlittling from somebody about how the sky will fall if people can have a couplea sticks attached to each other is only a “rational basis” to ban said sticks to a judge. And let’s not get into defense against attacks with a banana . . .
2. Unless I’m misremembering (I can’t find it in a quick scan) there’s some discussion in either the Opinion of the Court in Heller or one of the amicus briefs about the definition of “arms,” as referring to the sorts of things that people commonly carry for self-defense. By that logic, such as it is, nunchucks, being exotic and strange, might not qualify.
We’ll see. Me, I’ve got more hope for this one. If they want to face the issue squarely, all they’ve got to do is wait for that Court of Appeals to rule that only residents of DC have any Second Amendment rights at all.
But this one is ripe, so it’s got the drop on yours. And who can argue that nunchucks in the home don’t serve the right to self-defense? Especially if you’re attacked by a Wii burglar (only kidding there, Jdog. That’s the benefit of the younger crowd).
Hey, my only critique of excess in self-defense-in-the home weapons involves excessive blast radius; that’s not a nunchuck issue, unless somebody’s going to start wiring a couple of dynamite sticks together and swinging them around.
And sure, if the Supremes are eager to sing on the subject, this can be their fat lady.
In practice, though, I note that civil rights cases with sympathetic guests of honor — a bunch of cute little black girls who just want to go to school, a feisty lady with sore feet, a grouchy but putatively lovable security guard — by and large, seem more likely to have the Jedi ninjas wield their gavels sympathetically then one where the guest of honor is some dorky guy who maybe wants to play Bruce Lee in his basement and get a disorderly conduct conviction off his record.
And while lots of important principles have come about because some guy wanted to get sprung and had a good argument, the other model — Thurgood Marshall and the Ink Fund — has the benefit of the good guys getting to pick their battlegrounds.
So, I guess we’ll see.
“Hey, my only critique of excess in self-defense-in-the home weapons involves excessive blast radius”
Dude, you’re so hard-core. I’m going to be chuckling over that all day.
And here I was thinking was that it proved my moderation in such things.
I’m the “dorky guy who maybe wants to play Bruce Lee in his basement and get a disorderly conduct conviction off his record” (thanks, Jdog). If anyone is interested, there are plenty of documents (including briefs, etc.) on my website, http://www.nunchakulaw.com. It’s worth noting that there was a memorandum sent to the Governor dated April 4, 1974 (just before the nunchaku ban was signed into law) from the State of New York Executive Department’s Division of Criminal Justice Services, urging the Governor not to sign the bill into law, pointing out that nunchaku have legitimate uses in karate and other martial-arts training, and stating that “in view of the current interest and participation in these activities by many members of the public, it appears unreasonable–and perhaps even unconstitutional–to prohibit those who have a legitimate reason for possessing chuka sticks from doing so.” Judge Katzmann mentioned that and another, similar report at oral argument, but that stuff was left out of the opinion. A link to that memo in pdf is at the bottom of the home page once you enter my site. You can also find my brief and appendix, the transcript of oral argument, and other material. Well, gotta run. The basement calls…
While I generally don’t allow commenters to promote their own links, I think we’ll make a “dorky guy who wants to play Bruce Lee” exception, since you are the primary source here. Please come back and let us know how things are going as you wind your way to the top.
Here are my commentaries on a few propositions queried above (or at least hinted at) as they relate to the nunchaku in light of Heller:
1) The nunchaku is an “arm.”
COMMENTARY: Heller says that “[t]he 18th-century meaning [of ‘arms’] is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined ‘arms’ as ‘weapons of offence, or armour of defence.’…Timothy Cunningham’s important 1771 legal dictionary defined ‘arms’ as ‘any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.’” 128 S.Ct. 2783, 2791.
2. The nunchaku is a weapon “typically possessed by law-abiding citizens
for lawful purposes.”
(NOTE: Heller explicitly stated that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns,” 128 S.Ct. at 2815-16.)
COMMENTARY: The nunchaku has been recognized as having legitimate purposes by many courts since the 1974 New York ban was enacted, including the three cases cited at pages 10-11 of Appellant’s Brief (in pdf online at my site), as well as State v. Muliufi, 64 Haw. 485, 489, 643 P.2d 546, 549 (1982) (nunchaku widely used in the martial arts to build up dexterity, timing, mind and body coordination). See also 1974 Memorandum from NY Division of Criminal Justice Services, noting “current interest and participation in [martial arts involving use of nunchaku] by many members of the public.”
3. The nunchaku is not a “dangerous or unusual weapon,” whose carriage– or perhaps even possession in any location–may be prohibited. (NOTE: Heller refer-red to “the historical tradi-tion of prohibiting the carrying of ‘dangerous and unusual weapons,’” 128 S.Ct. at 2817.)
COMMENTARY: The sorts of prohibited/unprotected weapons the Court appeared to have in mind were those with highly destructive capabilities, such as the sawed-off shotgun at issue in Miller. The nunchaku is not of such nature, containing no stored potential energy as is the case with a firearm cartridge or explosive device, and the use of the nunchaku may readily be tailored to an appropriate defensive level of force without necessarily resorting to the deadly force that is inherent in the use of penetrating weapons such as firearms, swords, bows-and-arrows, and knives.
4. The nunchaku has a reasonable relationship to a militia. (See Heller, 128 S.Ct. at 2815; cf. Miller.)
COMMENTARY: The nunchaku was in use by citizens’ militias in Okinawa before ratification of Second Amendment, see Stephen P. Halbrook, “Oriental Philosophy, Martial Arts and Class Struggle,” 2 Social Praxis 135 (1974); imn modern times they were used by Navy SEALs in Vietnam, seeM assad F. Ayoob, The Truth About Self-Protection (1983) at 300. Nunchaku are also used for controlled non-lethal force by “over 200 law enforcement agencies across the United States.