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Kirkland & Ellis Will Ask Supreme Court To Consider Incorporation of Second Amendment, in the Second Circuit's Nunchaku Case:

Benjamin Wolf (The Elliot Schlissel New York Law Blog) has a guest-post from the petitioner in Maloney v. Cuomo that reports this.

Kirkland & Ellis (which is doing this case pro bono) is a top-notch law firm, with a top-notch Supreme Court practice. My guess is that the Supreme Court would prefer to consider the incorporation question in a case that involves more common facts, and that doesn't raise the additional legal question of whether nunchakus qualify as "arms" for Second Amendment purposes. But it's hard to tell for sure: It's possible for the Justices to use the case to decide the purely legal question of whether the Fourteenth Amendment incorporates the Second Amendment and thus constrains the states to respect an individual right to keep and bear arms. The Justices must be aware that the question is out there in lots of cases.

Moreover, the main criterion for choosing whether to decide a case -- whether there's a split among federal circuit courts or state supreme courts on the subject -- may well not arise on this issue: The existence of late 1800s Supreme Court precedent against applying the Second Amendment to the states (in a case that also held the same as to the First Amendment, a view that the Court has long since rejected) may keep a split from developing in the first place, as lower courts conclude that they're bound by the precedent despite the Court's relatively broad embrace of incorporation throughout the 1900s. So it's possible that the Court might conclude that there's no time like the present to decide the issue, though I'd still guess the odds are against it, even with Kirkland involved.

rick.felt:
As an originalist, I must conclude that nunchakus qualify as "arms" for Second Amendment purposes. After all, in 1789, the America still had a substantial pirate problem, and what better way to defeat pirates than with ninjas? The ninjas would have needed their nunchukus to defeat said pirates, so obviously nunchukus must have been in any well-stocked arsenal of the day.
3.4.2009 1:10pm
Bama 1L:
Well-played. I was thinking out a comment on division between pirates and ninjas on the bench, but I don't think rick.feldt's can be beat.
3.4.2009 1:13pm
Oren:
First handcuffs, now nunchucks?
3.4.2009 1:29pm
Jim Maloney (mail) (www):
Heller already has defined arms, and nunchaku qualify: “The 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.

The nunchaku is also a weapon “typically possessed by law-abiding citizens for lawful purposes.” (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.) 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, as well as State v. Muliufi, 64 Haw. 485, 489, 643 P.2d 546, 549 (1982) (“Today, nunchaku sticks are widely used in the martial arts to build up dexterity, timing, mind and body coordination and aids in developing a larger sphere of consciousness around an individual.”). See also the 1974 Memorandum from Division of Criminal Justice Services (Exhibit 1 to Amended Verified Complaint, A-20 of Joint Appendix), noting “current interest and participation in [martial arts involving use of nunchaku] by many members of the public.”

Jim Maloney (Petitioner)
www.nunchakulaw.com
3.4.2009 1:35pm
Just Dropping By (mail):
I was thinking out a comment on division between pirates and ninjas on the bench

Since the justices dress in black, wouldn't that make them all pro-ninja?
3.4.2009 1:39pm
Kirk:
But black is the color of pirates, too, isn't it?
3.4.2009 2:06pm
runape (mail):

"The nunchaku is also a weapon “typically possessed by law-abiding citizens for lawful purposes.”


I think you're going to have a difficult time establishing that nunchaku are "typically possessed by law-abiding citizens" at all, regardless of whether those citizens who own them happen to use them for law-abiding purposes.

Suppose a citizen got his hands on a nuclear weapon. Suppose the citizen didn't intend to use it for unlawful purposes, but just wanted it as a keepsake. Do you think the citizen has a Second Amendment right to his nuclear weapon?
3.4.2009 2:09pm
Crunchy Frog:
Proper pirate attire consists of a white blouse, tan skin-tight trousers, black boots, and a red bandana, with liberal amounts of gaudy jewelry.

Oh, and a parrot.
3.4.2009 2:11pm
Thales (mail) (www):
"But black is the color of pirates, too, isn't it?"

Only when accompanied by the Jolly Roger. I am pleased to see that one of the litigants is weighing in here--is that a first for the Volokh Conspiracy?
3.4.2009 2:24pm
greyarcher315 (mail):
runape,

Actually, all the martial artists that use tem should go a long way to proving that law abiding citizens do have them and use them. But then my logic and the court's logic sre not always the same.
3.4.2009 2:28pm
Houston Lawyer:
I own a telescoping baton. My understanding is that it is illegal to carry that weapon even if I have a concealed carry permit and have about six handguns on me with 500 rounds of ammo.

The right to bear arms should encompass knives and clubs so that people with an aversion to firearms can use more than their fists to protect themselves. Maybe you could get a license for these weapons if you have nunchuck skills.
3.4.2009 2:33pm
FlimFlamSam:
runape,

I think you are reading Heller incorrectly. The test is not whether a specific weapon is frequently owned, but whether OF THOSE WHO OWN IT, are they typically law-abiding citizens who use it for lawful purposes.

I think pretty much any martial arts weapon is going to qualify as being owned by typically law-abiding citizens whose use of the weapon is for lawful purposes. I am not aware of any particular criminal purpose associated with any martial arts weapons. Compare sawed-off shotguns, which gained a well-earned reputation as being favorites of criminals a long time ago.

Now, do I think that Heller is right on that issue? No, I don't think the right to bear a certain kind of arm should be conditioned on whether it is a favorite of criminals or not. I don't have a problem with restricting arms to personal arms, so that the Second Amendment isn't seen to protect a right to own tanks or battleships, etc.
3.4.2009 3:00pm
Jon Roland (mail) (www):
One of the many mistakes in the Heller decision was to include dictum that it is arms in common use by civilians that is the standard for review. The arms protected for militia are those in common use by the military, and that includes some heavy stuff. In the founding era it was not unheard of for civilian militiamen to own their own cannon or warships. I have no problem with civilians owning tanks with working guns, if they are "well-regulated" within their local militia units, trained in the proper use of them. We need to move the discussion from the tools to the toolusers and their attributes. Any weapon can be used properly in militia, even nukes. What is missing is a militia system that can monitor and train its members.
3.4.2009 3:11pm
wuzzagrunt (mail):
runape:

Suppose a citizen got his hands on a nuclear weapon. Suppose the citizen didn't intend to use it for unlawful purposes, but just wanted it as a keepsake. Do you think the citizen has a Second Amendment right to his nuclear weapon?


It only took 6 comments to arrive at the question of the 2nd Amendment's applicability as it pertains to nuclear weapons. The obvious solution is for the Court to uphold the existing ban on nuclear powered ninja weaponry.
3.4.2009 3:14pm
runape (mail):

It only took 6 comments to arrive at the question of the 2nd Amendment's applicability as it pertains to nuclear weapons. The obvious solution is for the Court to uphold the existing ban on nuclear powered ninja weaponry.


I agree.

More substantively, Heller plainly contemplates allowing restrictions on unusual weapons. Whether the work is being done by the originalist understanding of the term "arms," or whether it's being done by the phrase "typically possessed," it's clear, I think, from the tenor of the opinion that nukes are out. Sad for the nuclear powered pirates out there.
3.4.2009 3:29pm
WPZ (mail):
So...
As a tradesman for nearly four decades, I, like many of my colleagues, have used our belt hammers as weapons of defense; once, in the early '80s, the house we were putting a room addition on the rear of in Chicago was invaded through the front door by two knife-wielding robbers. The stay-at-home grandma screamed, and my partner and I rushed towards the front bearing our hammers, since our .45s were legally and safely at home.
The robbers fled.
Since Chicago is incorporated, and Illinois law then and now prohibits open carry of weapons in incorporated areas (but not in unincorporated areas!), were we in danger of being arrested for carrying weapons openly?
Hammers, any tradesman will testify, are common weapons for us, and not just against innocent building materials.
Nukes, indeed.
I'm reminded of Col. Cooper's old admonition: Bad laws provoke transparent evasions. Evidently, they also provoke silly overlays to fix the initial badness.
3.4.2009 3:37pm
CamarilloBrillo (mail):
As a policy matter, we should all support bans on nunchakus and other ninja weapons... to help fight global warming. God knows there are few enough pirates as is.

Proof: http://en.wikipedia.org/wiki/File:FSM_Pirates.png
3.4.2009 3:48pm
Leopold Stotch:
Leopold's Law: as an Internet discussion of the Second Amendment grows longer, the probability that someone will invoke the specter of individual ownership of nuclear weapons/howitzers/SAMs approaches one.


More seriously, FlimFlamSam, here's the problem with your reading of Heller: Civilian owners of lawfully possessed fully automatic weapons are law-abiding (at least with those weapons) to an almost unbelievable degree. The number of crimes committed with such weapons (again, I'm referring to machine guns that are properly registered with BATFE and, if necessary, the local authorities) approaches zero. (I don't think it's quite true that the number is zero, as folks on my side often claim. But I'm confident that it's less than five since 1934.) Under your reading, the overwhelming law-abidingness of owners of lawful machine guns should mean that those guns are protected by the Second Amendment. Yet the Supremes in Heller specifically disclaimed the idea that the Second Amendment might pose a problem for the National Firearms Act, and read Miller in such a way as to avoid that potential problem.
3.4.2009 4:03pm
PersonFromPorlock:
runape :

More substantively, Heller plainly contemplates allowing restrictions on unusual weapons.

Actually, Heller plainly contemplates allowing restrictions on all weapons, usual or unusual. The only thing it prohibits is the prohibition of a limited set of 'commonly used' small arms. SCOTUS really did not want to come to the decision it did, and when it was forced to find for the RKBA it did so as grudgingly as possible.
3.4.2009 4:25pm
pintler:

I own a telescoping baton. My understanding is that it is illegal to carry that weapon even if I have a concealed carry permit and have about six handguns on me with 500 rounds of ammo.


Same here - you get your permit with a cover letter reminding you it only covers handguns, not knives other than small pocketknives, brass knuckles, nunchucks and what have you. Not that I've never had the urge for brass knuckles, but the policy always seemed odd to me - if you don't mind someone having a gun, why worry about the rest?
3.4.2009 4:33pm
Jon Roland (mail) (www):
Last I heard it was still true that the only crime committed with a legally possessed full auto was a contract hit by a cop in Ohio. Any updates on that?
3.4.2009 4:33pm
Steve:
It seems to me that the appropriate question would be "who typically possesses full autos," not "who typically possesses lawfully registered full autos," since the latter interpretation puts a pretty big thumb on the scale. Not that I think the empirical answer would be different in either case, mind you.
3.4.2009 4:42pm
LarryA (mail) (www):
I just hope we don't end up with, "Sure we can ban firearms. You'll still have your nunchakus."
3.4.2009 4:44pm
LarryA (mail) (www):
It seems to me that the appropriate question would be "who typically possesses full autos," not "who typically possesses lawfully registered full autos," since the latter interpretation puts a pretty big thumb on the scale.
I’d like to see a ruling that whatever gun laws are in effect also apply to security guards and law enforcement. And politicians. And actors.
3.4.2009 4:50pm
Steve2:
Perhaps if we updated the Second Amendment to contemporary language, and to reflect the innovations in constitutional language the world's seen in the past two and a quarter centuries. For instance, the Chinese seem to really be on the cutting edge with their "right and duty" language...


Because the most fundamental of all human rights is the right to engage at all times and all places in self-defense by whatever degree of force is necessary, and because a well-armed citizenry is a check against tyranny, invasion, rioters, and the violent oppression of minorities, every person has the right and duty to keep and bear arms.


Off-topic seriousness aside, perhaps Mr. Maloney can correct me, but all the documents I've read leave me with the understanding that this case was briefed and argued entirely before Heller, and the brief references to it in the opinion were due to the judges sua sponte taking judicial notice of the new precedent. Would that sort of case history have an impact on how the SCOTUS handles the cert petition, perhaps by making one of those single-order "grant cert, vacate, and remand for consideration in light of [Case]" deferrals a likely response?
3.4.2009 4:58pm
zippypinhead:
Nice to see a fully-teed-up Second Amendment incorporation case already in position for a cert. petition. And a total ban case, to boot! But I'd still prefer to see the Court address incorporation in the somewhat cleaner Chicago cases when the time comes. Obvious issue with the record in this case after Heller include:

1. Is this Ninja-stix-on-rope-thingie (that's a technical description for the benefit of the Court) "arms" within the meaning of the Second Amendment?

2. Is this thingie in "common use" per Heller's gloss on Miller?

3. Does this thingie fall within Heller's "dangerous and unusual weapons" exception dicta?

On the other hand, the Court need not reach these issues if it takes the case - it could just decide the incorporation issue with a remand to address the remaining questions.

And it would make for some interesting Amicus merits briefs - instead of the NRA, would we see appearances by the World Amateur Nunchaku Organization and/or the Bruce Lee Fan Club?
3.4.2009 5:21pm
green-grizzly (mail):
The supreme court could just take the incorporation issue, and then remand to the district court to determine whether the ninja sticks are 'arms' (and hint that the answer is obviously no).
3.4.2009 5:37pm
Jim Maloney (mail) (www):
It was certainly briefed before Heller, but Heller was addressed in my 28(j) letter, and the oral argument focused almost exclusively on the Second Circuit's ability (or lack thereof) to incorporate the Second Amendment as against the states after Heller, but given the old cases such as Presser and Cruikshank. Between my writing the 28(j) letter and arguing, I attended a Second Amendment panel discussion at the New York City Bar Association at which panel member Ted Cruz, former Solicitor General of Texas, offered the advice that I would be wise to pound the "required" language in Heller's footnote 23, which is exactly I did.

Given the Second Circuit's position that they are bound by the old precedent (e.g., Presser and Cruikshank) I cannot imagine any briefing that would have changed that unless perhaps it had been signed by five current Justices!

More to the point, I doubt that the Court would now "remand in light of" simply because there is absolutely nothing in Heller beyond the dicta in footnote 23 that offers any guidance on the precise question of whether the Second Amendment may be incorporated, and, further, the old precedent is controlling. (I never really expected the Second Circuit to disregard it, but, hey, I gave it the old college try...)

The paradox that Prof. Volokh posits about a circuit split and the inability to develop one given the old precedent is similar to a "discussion preliminary to argument" that I offered in one of my briefs to the District Court, q.v.

Jim Maloney
3.4.2009 5:39pm
Crafty Hunter (www):
For some reason, I'm reminded of the ancient weapon known as a quarterstaff. I wonder what would happen if I showed up in public in any city in New York State carrying a classic iron-tipped quarterstaff.
3.4.2009 5:39pm
Jim Maloney (mail) (www):
My previous post addressed Steve2's 4:58 pm post. This one addresses question 3 in zippypinhead's 5:21 pm post (I already addressed his questions 1 and 2 way back in my very first post here.) Heller referred to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” 128 S.Ct. at 2817 (emphasis added). So it appears that this limitation applies only to carriage, but I suppose reasonable minds could (and will) differ. My challenge has always been only to prohibition of simple in-home possession. In any event, 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. See the Amended Verified Complaint at ¶¶ 25-27, A-19 of Joint Appendix. Baseball bats are far more "dangerous" in that the mass and momentum can fracture a skull (and indeed fatal beatings with baseball bats occur rather routinely, so I guess their use as a weapon is not "unusual")). The nunchaku, in contrast, is primarily a defensive weapon, being light and quick. While it is relatively easy to hit the hand of an attacker wielding a knife, disarming him, inflicting a single, fatal wound, as can be done with knives, projectiles, baseball bats, etc., is not an expected or even likely capability.
3.4.2009 5:57pm
Leopold Stotch:
Jon Roland,

There's the Ohio cop, there's a reference on GunCite to another Ohio killing in 1992, and there's one other strong candidate that I personally know of.

In Elkhart Indiana, on August 28, 1975, a Class III dealer named Edward Jacks, Jr., murdered his estranged wife, Kathleen, with what was reported by the local newspaper, The Elkhart Truth, to have been an "AR-15, .223 automatic weapon." (Recall that this was 1975, and the original AR-15s were selective fire.) I have reason to believe that the gun in question was in fact full auto. Given that Jacks was a dealer, there's also every reason to think that he possessed the gun lawfully.

If you really want to be sure, I think you could probably write to Jacks and ask him. The Indiana Department of Corrections info on him is a little unclear, but it looks like he's still alive and still in prison. He might answer. I doubt he has anything better to do with his time.
3.4.2009 6:03pm
Steve2:
Thank-you, Mr. Maloney. I hadn't seen the 28(j) letter or the argument transcript before.
3.4.2009 6:06pm
Leopold Stotch:
Steve,


It seems to me that the appropriate question would be "who typically possesses full autos," not "who typically possesses lawfully registered full autos" . . .


You may be right. But given the rarity with which machine guns are found in the hands of criminals, let alone used in crime, I think the result is the same: Under FlimFlamSam's test, they'd be protected. But the Supremes in Heller don't seem to think so.
3.4.2009 6:17pm
anonym:
This makes me even happier about going to work for Kirkland this summer!
3.4.2009 6:23pm
ArthurKirkland:
Although I do not recall hiring you for the summer, I have always believed there to be no harm in elevated aspirations. So dream on!
3.4.2009 6:31pm
Fûz (mail) (www):
Nunchaku were invented by Japanese farmers at a time after conventional arms (swords, bows) were restricted to a warrior class. So these arms were concealable, so to speak, and intended to reduce the inequality between the peasants and the warriors.

Nunchaku would appear to be a "bundle of sticks" or could be hidden within such a bundle.

The point Mr Maloney makes that nunchaku are _defensive_ needs to be stressed repeatedly. They were made to resist an oppressing force.

I've seen martial artists demonstrating with nunchaku, and I've seen a police officer demonstrating with them too. The former did so in the 'form', a series of predetermined moves defending against hypothetical attackers. The latter did so with techniques emphasizing the nunchaku's __nonlethality__.
3.4.2009 11:06pm
whit:
fwiw, SDPD used to (not sure if they still do) issue nunchaku as a baton alternative for their officers.


Maybe you could get a license for these weapons if you have nunchuck skills.



napoleon dynamite has mad nunchaku skillz...
3.4.2009 11:29pm
Jeffery W Wilson (www):
Crunchy Frog:


Proper pirate attire consists of a white blouse, tan skin-tight trousers, black boots, and a red bandana, with liberal amounts of gaudy jewelry.

Oh, and a parrot.


Like this?

I was hoping to get home and get this into the comment stream before someone else did....
3.4.2009 11:46pm
Clayton E. Cramer (mail) (www):
I think it would be worthwhile to find out when nunchakus were added to the various state weapons control laws. They are certainly never mentioned in antebellum cases that I have read. I suspect that they are an outgrowth of tong wars, and thus immediately suspect as racially motivated.
3.5.2009 10:19am
Clayton E. Cramer (mail) (www):

The point Mr Maloney makes that nunchaku are _defensive_ needs to be stressed repeatedly. They were made to resist an oppressing force.
A friend used to carry them when running in California to deal with unleashed dogs, until I pointed out that he was committing a felony. He had no idea. The notion that they should be classed as equivalent to or worse than a handgun is absurd.
3.5.2009 10:23am
Clayton E. Cramer (mail) (www):
I see that New York's ban is recent, and tied to kung fu movies. That blows out that approach. Not racism, but stupidity.
3.5.2009 10:29am
wuzzagrunt (mail):
Nunchuks aren't even weapons! They are obviously sporting equipment used in the non-violent game of Table Tennis
3.5.2009 4:20pm
nk (mail) (www):
Actually, a nunchaku is a rice flail which Okinawans, forbidden by their Samurai overlords to own real weapons, learned to use as a "weapon". (Same with the tonfa, a handle for a rice grinder but now used by many police forces as a baton.)

I still have my nunchaku that I got when I was seventeen (and I'm fifty-two now). As a weapon, it makes a pretty good toy. Bruce Lee made it popular in "Enter the Dragon", around 1972, and if I had his screenwriter, director and stuntman, in every fight, it might be my weapon of choice too. Otherwise, I prefer a weapon "suitable to my station" (I am an Esquire after all) -- a sword or a firearm.
3.5.2009 10:05pm
visiting texas lawyer (mail):
I have to note, having used them since about 1970 or so that if I need a weapon, a hiking staff or walking stick is far superior.

On the other hand, with good training, they can be effective.

But defending yourself from dogs and coyotes is about the level I'd leave them at. If I felt the real need for self defense, I'd probably get a concealed carry permit and a .40 cal. pistol.

The problem with them is that idiot criminals do use them and carry them about. So police like to have statutes that make it easy to arrest people.

My best experience with them was when I had gone to a meeting after a talent show where I had done a sword kata.

I had a 3' live blade, the campus police couldn't touch it. But they did confiscate the nunchaku and the tonfa that some other people were playing with in the hall. I let them take it to the office, and cleaned off all the fingerprints when I picked it up to go home.

So, live steel, ok, play versions of old agricultural almost weapons, confiscated with warnings.
3.6.2009 11:39am

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