Today's the one-year anniversary of the Supreme Court's decision in Heller v. District of Columbia. James Maloney, appellant in Maloney v. Cuomo, has filed a petition for his case to be heard before the Supreme Court next session. The case is now Maloney v. Rice (pdf). Kathleen Rice is the current District Attorney for Nassau County.
The petition follows and supplements the 14th Amendment claim Mr. Maloney made before the 2nd Circuit in February. It points out that the Circuit Courts are now divided three ways on the question of 14th Amendment incorporation, which would demand that the Supreme Court rectify this discrepancy. It's worth noting that 7th Circuit Justice Easterbrook also acknowledged this disparity in NRA v. Chicago.
Maloney also recognizes the existence of the pending petitions from Alan Gura and the NRA, and he suggests consolidating all three:
Either or both of the pending petitions for certiorari on the Second Amendment incorporation issues arising out of National Rife Association would be fitting for this Court to grant because those cases present the same Fourteenth Amendment issues concerning applicability of the Second Amendment to the States invoked in this petition. Indeed, consolidating those cases with this case and granting certiorari over all of them as a unit would put before the Court the fullest possible range of factual and legal settings in which to consider and resolve the burning issue of Second Amendment incorporation. (p. 25)
Such a measure would represent the largest, broadest coalition of 2nd Amendment resources in American history towards a single goal.
The Maloney petition is terse and a bit snarky at times:
Heller’s logic and its careful survey of history will not permit the Second Amendment to be shunted to the side and relegated to second-class status in an arbitrary pecking order of constitutional rights.
Nonetheless, it makes its point convincingly and shows some serious forethought on strategy.
I was quite glib in my initial assessment of Maloney's case when it was first argued in the 2nd Circuit, but it has become quite the unstoppable dark horse. The petition also lays out the events leading up to Mr. Maloney's appeal in greater detail than before:
Following a dispute between Mr. Maloney and a telephone line worker who was working on a platform outside Mr. Maloney’s home on August 23, 2000, the police were summoned and eventually admitted to his residence, whereupon they conducted a search and found the nunchaku that Mr. Maloney owned for purposes of self-defense and martial-arts training.
Police had become involved after the telephone worker claimed that Mr. Maloney had pointed a rifle at him from within the home. When the police arrived at Mr. Maloney’s home, they did not have a search warrant, so Mr. Maloney repeatedly refused them entry. A team of police surrounded his dwelling and nonetheless persisted— for nearly twelve hours — in calling for Mr. Maloney to exit his home and surrender to them. After consulting with counsel and his rabbi, Mr.Maloney finally surrendered into the custody of police at approximately 2 a.m. on the morning of August 24, 2000.
Nassau County and Mr. Maloney dispute the circumstances surrounding Mr. Maloney’s wife’s decision to later consent to the police entering their home. As the Eastern District of New York noted, “[i]t is readily apparent from the face of the documents and from the Declaration of [Mr. Maloney’s wife] . . . that there are substantial issues concerning the scope, voluntariness and validity of [her] consent.”
Police searched the home, finding the nunchaku under a couch. Police also seized from Mr. Maloney’s locked safe three revolvers, two inoperable and one operable, all purchased legally by Mr. Maloney in either Florida or New Jersey years before. Regarding Mr. Maloney’s interaction with the telephone worker, the Supreme Court of New York for New York County concluded as follows: “It is undisputed . . . that petitioner did not have a rifle, and that he had not pointed any weapon at the telephone worker.” (pp. 10-11)
Six charges were brought (it sounds like the police wanted anything they could get), including illegal weapon possession. In 2003, Maloney plead down to a single violation of disorderly conduct. His nunchaku were destroyed, and he filed suit with the District Court the following month. Thus began the journey to the Supreme Court for his grievances.
The petition also observes that over 200 American police departments utilize nunchaku in the course of their duties, something I never suspected:
Although nunchaku can be used offensively, it originated as and is utilized by modern martial artists primarily as a means of self-defense. Unsurprisingly, then, nunchaku are also currently used by over two-hundred police forces across the country for control of and/or self-defense against unarmed attackers. As noted above, the New York Attorney General has determined that state and municipal police in New York may possess and use nunchaku in the course of their duties. (pp. 7-8)
That last point casts a shadow on the argument that nunchaku would not be considered "militia weapons."