The 2nd Circuit Court of Appeals has returned a verdict in this case, and they’ve found that New York’s ban on nunchaku does not violate the 2nd Amendment.
No word yet as to how this effects chigiriki, shuriken or tonfa.
OK, I’ll be nice. The story is that James Maloney was arrested on 08/24/2000 for possession of nunchaku, a misdemeanor in New York. The weapons charge was dismissed the following January, and Maloney pled guilty of disorderly conduct.
In 2003, Maloney filed a complaint alleging that the seizure of his weapon violated the 2nd Amendment. Though the Supreme Court found in District of Columbia v. Heller (pdf of decision) that Washington’s categorical ban on handguns was unconstitutional, the question of incorporation remains.
Last year, the Supreme Court ruled that the 2nd Amendment protected an individual right, and that blanket bans were a violation of that right. However, the scope of the decision was essentially limited to the District. A thornier question remains: does the protection of the 2nd Amendment restrict the ability of individual States to pass restrictive laws, or does it simply restrain the Federal government?
Article IV, Section 2 of the US Constitution states that:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
This is why I can drive in New York using a license issued in Georgia. Same (for the most part) goes for marriage licenses. Of course, “privileges” and “immunities” are different animals than “rights,” a fact that was used to justify discrimination until well after the Civil War.
It’s also worth noting that the courts have found that, even if it can be construed as protecting rights, the Privileges and Immunities clause only applies to rights transferable from one state to the next. If I live in Georgia, where (I’m making this up, people) people of Canadian descent are banned from voting, I can’t claim that my rights are violated because Maine has no such clause.
So, along comes the 14th Amendment, the first clause of which is entitled Privileges or Immunities:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Though the 14th Amendment has been chipped away at a bit by the courts over the years, it essentially guarantees that the rights enumerated in the United States Constitution apply equally in all 50 states. The state of Iowa has no power to compel me to quarter soldiers in my home during peacetime any more than Oregon does.
And what of the right to keep and bear arms in the 2nd Amendment? Should it not also apply in all 50 states? Theoretically. The first problem was defining the right, and to whom it belonged. Heller helped that quite a bit.
Now, we need a state-level case in which the courts apply the protection of the 14th Amendment to the 2nd. I think somebody intended Maloney v. Cuomo (pdf of decision) to be such a test, but it had its share of problems, not the least of which is that the 2nd Amendment argument seemed to be tacked on at the last minute.
The short version is that the State of New York claims that nunchaku are unlawful, and Mr. Maloney claims that such a restriction violates his 2nd Amendment rights. It’s fairly straightforward. Unfortunately, this is New York, and Maloney’s appeal was rejected.
Part of the 2nd Circuit Court’s justification in upholding Maloney’s conviction was that,
(…) the Second Amendment does not apply to the States and therefore impose[s] no limitations on New York’s ability to prohibit the possession of nunchakus. p. 2
The Court even highlights the lack of incorporation:
It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state”) p. 2-3
They reach back to Bach v. Pataki (pdf of decison) for affirmation, finding,
Although the sweep of the Second Amendment has become the focus of a national legal dialogue, we see no need to enter into that debate. Instead, we hold that the Second Amendment’s “right to keep and bear arms” imposes a limitation on only federal, not state, legislative efforts. We thus join five of our sister circuits. p. 15
With the exception of the Fifth Circuit, this is what we’re getting for the most part. The circuit courts have never generally been the least bit friendly to the 2nd Amendment, usually falling back on Miller’s “militia purposes” and its fictional “collective” right.
Now that Heller has thrown those ideas out, the courts will claim that the 2nd Amendment only applies to my interactions with the Federal government, and that individual states are free to make and enforce laws that violate the 2nd Amendment. At this point, it’s Heller vs. Presser in the lower courts, and the Presser interpretation is still in the lead.
We need to get this situation changed, but it’ll be an uphill climb. To succeed, the case will have to be a winner. Unfortunately, this one doesn’t really fit the bill. Though the 2nd Amendment protects “arms” of any type, the main debate is about guns in the hands of the citizenry, and that’s where we need to be focusing our energies.
The ideal would be for someone to apply for ownership of a weapon prohibited by a specific state, say an AR-15 or FAL in California. New York’s attorneys could argue that nunchaku are covered under the “dangerous and unusual” clause in the Heller decision, but no such label applies to the AR-15, which is explicitly mentioned (as the M-16) in Scalia’s opinion.
So, I’m sorry to see Mr. Maloney’s challenge fail. If it seems that I’m coming down on him, I’m not. He seems really interesting, and I’d like to buy him lunch if our paths ever cross.
It should also be noted that Mr. Maloney runs NARNIA, or the National Alliance for Relief from Nunchaku Intolerance in America. It could also be an acronym for “Ninjas Are Really Nasty in Action.” Who knows? Ninjas could be anywhere at the moment.