Wednesday, January 28, 2009

The Second Amendment and Nunchacku

Last term’s US Supreme Court decision in District of Columbia v. Heller (that the Second Amendment to the US Constitution protects an individual's right to possess a firearm for private use) apparently does not extend to nunchacku or nunchaks, according to the Second Circuit Court of Appeals. Today, that court issued its opinion in Maloney v. Cuomo which may bring to an end the long battle by the plaintiff in that case, a Port Jefferson attorney, who challenged his arrest for possession in his home of two "chuka sticks," or "nunchaku." The case has a long and tortured history which is summarized in a article entitled N.Y. Attorney Vows to Fight 'Nunchaku Intolerance'. Today’s decision by the Second Circuit affirms a ruling by Judge Arthur Spatt of the Eastern District of New York that denied Maloney's claim that §265.01 of New York's Penal Law violated his Second Amendment right to keep and bear arms. Subsection 14 of that section of the NY Penal Law defines a “chuka stick” (or “nunchaku”) as:
"any device designed primarily as a weapon, consisting of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury upon a person bystriking or choking."

On the issue of whether the Second Amendment applies to the States, the Second Circuit ruled:

It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. [Citations omitted] Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. . . 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.’” [Citations omitted] Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not violate the Second Amendment.
Whether the plaintiff will seek US Supreme Court review is an open question. However, the passion he brings to the topic of Nunchaku Intolerance on his website suggests that such an appeal is likely.

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