Kirkland Ellis (i.e. Ken Starr) to take RTKBA Incorporation Case

2nd amendment... incorporation.. on Nunchucks.

That is SNEAKY.

I /LIKE/ it.

.
What's the chance of this:



a.) Reaching SCOTUS


b.) Winning in SCOTUS


c.) Making Incorporation apply to the states



.

Astronomically small. Call it "zero."

Whilst, as with the vast majority of cases, the probability of reaching the SC on it's own is small, every case such as this assists in building case law for the ones that DO get to the SC.

The more splits in the Circuit the better for an SC challenge

This is a really interesting case.

The way I see it right now, our biggest worry has to be the circularity problem in Heller concerning common use. We have to make sure we get a follow-up case that defines common use more clearly, and in such a way as to eliminate the circularity problem (i.e., ensuring the definition cannot be swayed by government bans or heavy regulation causing a weapon not to be so "common.").

Incorporation cases are indeed the logical next step, but while we're doing so we should be careful about setting precedent about the scope of the 2A. One approach is to be conservative, and bring cases that ONLY involve incorporation. The Chicago case (also by Alan Gura) follows that strategy exactly; Chicago has a ban similar to DCs and it's all but a foregone conclusion that if the 2A is incorporated, the Chicago ban must also fall.

Nunchucks on the other hand are going to require an examination into the scope of the 2A, and that's why it's interesting. The place a fight like this might have been expected would be over something politically controversial...the assault weapons ban, or even NFA'34, for example. There's a suspicious line in Heller seemingly implying military weapons like M-16s aren't protected, and that doesn't help the common use circularity problem if the case is brought over assault weapons/rifles. But, by bringing a case about nunchucks, you step away from the controversy, away from the "sky is falling" striking down too big of laws too quickly. If it's easy to stomach politically, it's easier to do judicially.

There are lots of "safe outs" too. If the case loses, it might fail on common use even without the circularity issue (they wouldn't be common, even without the bans). It also makes sense to look to Miller to the degree it was referenced by Heller, in that the weapons protected by the 2A are those associated with militia service. If TSHTF and the militia is called upon, would you be expected to appear for duty with nunchuka? Not likely. They'd expect a rifle and a sidearm. That's a "safe out" because holding that a weapon too ineffective or obsolete, or a curio, isn't within the scope of the 2A doesn't weaken it. It's the effective, militarily-useful weapons that need the protection.

a word from the source

This is Jim Maloney, the Plaintiff/Petitioner. Saw this thread about my case and thought I'd jump in. First off, documents and information can be found at my dedicated website, www.nunchakulaw.com, which I will update frequently as the case (formerly Maloney v. Spitzer and then Maloney v. Cuomo, and soon to be captioned Maloney v. Rice) progresses.

I can't predict the odds of getting cert, but I and my colleagues at K&E can and will do our best to maximize those chances. One angle we've agreed upon is that we should seek incorporation only as to the right to keep arms (Scalia distinguishes between "keep" and "bear" in the Heller opinion). In that way, the Court may take the "baby steps" it likes without raising questions about the states' authority to regulate carriage of weapons in public ("bearing" them). My challenge has always been only to New York's prohibition on possessing nunchaku as it applies to simple in-home possession ("keeping" arms).

As to whether nunchaku are "arms," 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.”

I will try to respond to posts on this forum as time permits, but may opt to post generally applicable information reponsive to FAQs on my website.

Regards,

Jim Maloney

wow! thanks for posting up here! very much looking forward to following your case and i wish you luck!

Bobby

ricethresher: Killer post! You look like you have all of you bases covered.

Luck always goes further when supported by hard work, so I can with all honesty say - Good luck!

Here's hoping you win this one. Incorporation would go a long way for us, starting with Nunchakus, and ending with All weapons (in theory)

Afraid this might backfire

Sneaky strategy but hopefully it won't backfire. Originalists (Scalia, Thomas) probably wouldn't even construe Nunchucks as "arms." Hopefully it'll be a NARROW decision and keep open the gun question.

Come to think of though maybe that's the strategy - if you lose it almost certainly will NOT apply to guns, but if you win applying it to guns seems easy!

Let's cross fingers....

Supreme Court trivia

GlockFan1954:

I'm glad you see the beauty of it!

Actually, I'm pretty optimistic that Scalia would consider nunchaku an arm based on what he wrote in Heller (see above). As for Thomas, it's an interesting bit of trivia that the only time in history that the word "nunchaku" was used in a Supreme Court opinion was in Thomas's concurrence in United States v. Lopez, the 1995 case that struck down the Gun-Free School Zones Act of 1990 as beyond Congress's power under the Commerce Clause. (I "lived and breathed" that case as it went up, catching the Fifth Circuit's decision on Westlaw while a law student in late 1993, writing and publishing an article about it, "Shooting for an Omnipotent Congress," that appeared in Fordham Law Review in 1994, and watching oral argument at the Supreme Court later that year. So when they handed down the decision in April 1995--on my last day of classes at law school--I read all six opinions immediately and noticed the nunchaku reference.)

And don't you think "originalists" would be impressed by the use of nunchaku as an "arm" of a citizen's militia in Okinawa when the Satsuma clan of Japan invaded in the early 17th Century? Steve Halbrook, in an article he wrote in 1974, before he became a Second Amendment lawyer (and, coincidentally, the same year nunchaku were banned in New York), wrote that that the invading Japanese clan “banned all weapons but its own and brutally suppressed the population” and that a “people’s revolutionary movement organized clandestinely, and its activities centered around the development of karate for peasant self-defense against the imperial dictatorship.” S. Halbrook, “Oriental Philosophy, Martial Arts and Class Struggle,” 2 Social Praxis 135, 139 (1974).

Just some material to chew on...

Jim Maloney (aka "ricethresher")

.
So when will SCOTUS rule on this?




Or are you saying they already did?

from the pdf he linked:

08-1592 MALONEY, JAMES M. V. RICE, KATHLEEN A.
The petition for a writ of certiorari is granted. The
judgment is vacated, and the case is remanded to the United
States Court of Appeals for the Second Circuit for further
consideration in light of McDonald v. Chicago, 561 U.S. ___
(2010).

Click to expand...

ETA: This is VERY IMPORTANT. The supreme court has just tacitly stated that nunchucks (and most likely by extension, other martial arts type weapons, swords, daggers, etc) are protected under the Second Amendment.

This is HUGE.

Sebastian the Ibis said:

Nunchucks are arms, so ostensibly covered by the Second Ammendment. But, next to worthless as a weapon, so politicians look foolish (and bigoted) for banning them.

Click to expand...

Well, I guess it depends on whose hands they're in:

Scene from The Way of the Dragon

But seriously, while I agree with your point, the potentially negative aspect is that firearms could be marginalized as an extreme form of arms as a result of such a comparison. That said, in general just about any broadening of our rights is a good thing as far as I'm concerned, both in and of itself and because it would make it more difficult for the antis to single out any type of arms for banning.

I want a switchblade.

Do not celebrate too quickly. The 2nd Circuit could easily uphold the ban without necessarily saying anything contrary to either Heller or McDonald. Maloney was decided by the 2nd partially upon the grounds that the 2nd was not applicable to the States. Thus, it was proper for SCOTUS to vacate that decision and order the 2nd Circuit to reconsider its ruling in light of McDonald.

At the Court of Appeals level the issue will now center upon the issue of which arms are protected by the 2nd Amend. Are nunchucks a weapon in "common use"? Will the Miller test of "militia useful" be employed? Some very important issues will be decided and this case will well be worth watching carefully, but do not put it in the "win column" just yet.

Personally, I do not like the test articulated in Heller for arms that are protected. It creates a catch 22 for weapons that have previously been restricted from civilian ownership and prevents new weapons developments from being protected. Nor do I much like the Miller test. Strictly speaking, Miller is interpreted incorrectly IMHO to include a "militia useful" test. The case relied upon by Miller actually excluded from protection those weapons which are of primary benefit only to "ruffians and rouges".

At the Court of Appeals level the issue will now center upon the issue of which arms are protected by the 2nd Amend. Are nunchucks a weapon in "common use"? Will the Miller test of "militia useful" be employed?

Click to expand...

If they use the Miller test, they're opening up a huge can of worms re: NFA-regulated arms.

If they use the Miller test, they're opening up a huge can of worms re: NFA-regulated arms.

Click to expand...

And there are PLENTY of LIVE plaintiffs around to assert that what's useful to the active military is useful to the militia, including short barreled rifles and shotguns, and fully automatic firearms.

What are Obama and Holder going to do, confiscate and destroy EVERY image of a GI with an M4?

Sebastian the Ibis said:

Congratulations and Bravo ricethresher/ Jim Maloney!!!!

Click to expand...

Thanks, Sebastian.

We'll see how things go on remand. I will continue to post updates about the case here, and that page and others may be accessed via www.nunchakulaw.com.

It seems inconceivable that the nunchaku, which was first used as a weapon by a citizens' militia in Okinawa (resisting the Japanese occupation) nearly two centuries before the Bill of Rights was ratified, could now be denied status as an "arm" for home defense. Both Heller and McDonald say that the Second Amendment guarantees the right to defend oneself and one's home. By what rational standard could the choice of a non-lethal weapon that may be used to subdue a home invader (many of whom are simply mentally ill individuals) without resort to lethal force be second-guessed by the State, which, 36 years ago and without much thought, simply enacted a total ban on any and all possession of two sticks connected by a cord?

A look at New York's own Division of Criminal Justices Services memo from 1974 (pdf copy here), which opposed the total nunchaku ban, makes it clear that, at that time, nuchaku were in common use by law-abiding citizens. If that is no longer the case, it is only because of the ban and New York's recent efforts to disarm individuals in the State (like myself and others) who have dared to keep a pair in their home for peaceful martial-arts practice and home defense. (Details here on pseudo-blog I posted as a unit one year ago.)

Thanks again for all your support, and Happy Independence Day!

Jim Maloney