NY JUDGE: NUNCHUCK BAN UNCONSTITUTIONAL
Just blame Bruce Lee. Back in 1974, New York state decided to ban the possession of nunchucks as lawmakers feared they were becoming enticing tools of violence among hooligan children and street criminals who were exposed to the weapons on TV. They were so dangerous, lawmakers believed, that not even karate teachers could keep them in a locker at home.
But while being dangerous might have been a good enough reason then, it doesn’t cut it anymore, as a federal judge ruled Friday.
In a 32-page ruling, U.S. District Judge Pamela K. Chen struck down New York’s nunchuck ban as unconstitutional, finding that nunchucks are protected under the Second Amendment right to bear arms.
Chen concluded that nunchucks are commonly used by law-abiding citizens — for example, by karate enthusiasts or for self-defense — so therefore banning them outright runs afoul of the Second Amendment. The judge also applied a 2010 landmark Supreme Court rulingthat extended the Second Amendment to state laws.
The plaintiff, James Maloney, started his legal quest after being charged with possession of nunchucks in his home in 2000. He initially filed a complaint in 2003, and appealed all the way to the U.S. Supreme Court when the case went against him. The Supreme Court in 2010 remanded the case back down to be reconsidered in light of a Second Amendment decision it had made in another case, and Maloney filed an amended complaint later that year.
Maloney had been focused on getting the part of the law overturned that banned nunchucks, two rigid rods connected at one end by a chain or rope, even in private homes.
In her ruling, Chen said the court couldn’t simply take that part out, and ruled that the state’s law as it pertained to possessing nunchuks as well as to manufacturing, transporting or disposing of them was in violation of the Second Amendment.
The ruling went over the history of the ban, and said it “arose out of a concern that, as a result of the rising popularity ‘of ‘Kung Fu’ movies and shows,′ ‘various circles of the state’s youth’ — including ‘muggers and street gangs’ — were ‘widely’ using nunchaku to cause ‘many serious injuries.’”
But while the nunchucks ruling may be an important affirmation of those principles for gun-rights advocates, after nearly 15 years of litigation, the ruling also represents a long-sought victory for one New York amateur martial artist.
James Maloney, who is also a lawyer, had been arrested for possessing nunchucks at home in 2000. Since 2003, while representing himself, he has argued that the law prevented him from teaching his children specialized karate moves that he invented, involving use of the nunchucks. He called his style “Shafan Ha Lavan.”
Maloney’s children are now grown. But his goal in the case extended well beyond passing down a martial arts style to his sons. He believed that the government’s total ban on nunchucks in the home stripped him of the right to defend himself, which the Supreme Court has said is a central principle of the Second Amendment.
Even though he only asked that Chen recognize his right to at least keep nunchucks at home, the judge went a step further, finding the entire law targeting nunchucks to be unconstitutional.
“The Court granted relief somewhat beyond what I had asked for, but I am not about to complain,” Maloney wrote on his blog, where he has been chronicling his one-man nunchuck battle. “Thanks to the many who have helped in many ways along the way. It has been a path with heart.”
The ruling, if left in place, would make Massachusetts the only state to still ban the karate weapon outright, according to the ruling, though other states restrict the use of nunchucks in varying ways.
Back in 1974, when New York state lawmakers debated adding nunchucks to its list of banned weapons, joining machine guns and brass knuckles, kung fu was all the rage. Bruce Lee’s death in 1973 was still fresh and so was his last film, “Enter the Dragon,” which was released posthumously a month after he died and immortalized as one of the best kung fu films of all time. The TV series “Kung Fu” was in full swing, too. And “The Street Fighter,” premiering in 1974, surely horrified lawmakers concerned about nunchucks, as it was the first American film to earn an X-rating purely for violence.
“As a result of the recent popularity of ‘Kung Fu’ movies and shows,” the New York District Attorney Association wrote in one 1974 letter, referring to the weapons by an alternate name of chuka sticks, “various circles of the state’s youth are using such weapons. The chuka stick can kill, and is rightly added to the list of weapons prohibited by section 265.00 of the Penal Law.”
Until now, nearly all the state needed to do to uphold its nunchuck ban was prove that it was rationally related to a government interest, such as keeping citizens free from nunchuck attacks.
That’s why, at least initially, Maloney kept losing. He lost in 2009 in the U.S. Court of Appeals for the 2nd Circuit, when a panel that included future Supreme Court Justice Sonia Sotomayor ruled against him on the grounds that New York had demonstrated a rational basis for its nunchuck ban. At that point, the Second Amendment wasn’t being used in reference to state laws, thanks to an 1876 high court ruling.
But all of that was all about to change, as foreshadowed by Sotomayor’s Supreme Court confirmation hearing later that year, where Maloney’s case made a cameo.
Sotomayor’s panel ruling against Maloney had cost her the support of the National Rifle Association. At the time, a crucial Second Amendment case, McDonald v. Chicago, was pending through the lower federal courts, and gun-rights advocates believed it could have the potential to overturn that long-ago 1876 Supreme Court ruling standing in their way. McDonald was important to them because a positive ruling could make it much harder for state governments to pass restrictive gun (or nunchuck) laws.
Republicans feared that the ruling against Maloney indicated Sotomayor would not be open to overturning the 1876 ruling through McDonald, a case challenging a blanket ban on handgun registrations.
But Sotomayor managed to reassure them — in part by stressing that Maloney’s case was just about nunchucks.
Sen. Orrin G. Hatch (R-Utah) began by asking, “Doesn’t your decision in [Maloney v. Cuomo] mean that virtually any state or local weapons ban would be permissible?”
“Sir, in Maloney, we were talking about nunchuck sticks,” she responded, eliciting muffled laughs from the room. She then explained to Hatch how exactly nunchucks are used: “When the sticks are swung, which is what you do with them, if there’s anybody near you, you’re going to be seriously injured, because that swinging mechanism can break arms. It can bust someone’s skull.”
Hatch backed off. Conan O’Brien later turned the moment into a comedy sketch.
But as it turns out, the concerns raised by Hatch and other Republicans about Sotomayor’s view in Maloney were not misplaced. The very next year, in a landmark 2010 decision in McDonald, the Supreme Court ruled that the Second Amendment applies to state laws, a major victory for gun-rights advocates that has since allowed the NRA to file many more lawsuits challenging gun restrictions. Sotomayor voted against it in a 5-4 ruling.
It was also the ruling that made Maloney’s nunchuck victory possible Friday, according to Chen’s decision. In light of McDonald, the Supreme Court remanded Maloney’s case back to the lower federal courts in 2010.
Attorneys for the Nassau County District Attorney’s Office, the jurisdiction where Maloney was arrested, attempted to argue that “the dangerous potential of nunchucks is almost universally recognized.” They cited news articles about isolated nunchuck attacks and the two nunchuck assault prosecutions within Nassau County, N.Y., in a two-year period. But Chen didn’t buy it.
Citing a history that Maloney presented about nunchucks, Chen wrote: “The centuries-old history of nunchaku being used as defensive weapons strongly suggests their possession, like the possession of firearms, is at the core of the Second Amendment.”
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