Nunchuck rights? Judge strikes down ban on 2nd Amendment grounds

It’s the end of a 44-year moral panic in New York, one inspired by Bruce Lee. A federal judge concluded yesterday that the Second Amendment does not limit the right to bear arms to just firearms. Judge Pamela Chen struck down an Empire State ban on nunchucks with a ruling that has considerable nuance:

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 ruling that extended the Second Amendment to state laws.

The plaintiff, James Michael Maloney, had fought the law for years but had little success — until McDonald came along. When the Supreme Court ruled in that case that the 2nd Amendment was “incorporated” through the Due Process clause of the 14th Amendment, it opened up a new line of attack against state laws restricting access to weapons. That allowed Judge Chen to apply the 2nd Amendment — as well as a rational-basis test — and overturn the ban.

Maloney, as one might expect, was thrilled with the outcome:

On December 14, 2018, the United States States District Court for the Eastern District of New York rendered a final decision (still subject to possible appeal) in Maloney v. Singas, my pro se constitutional case, striking down virtually all of the provisions of the New York Penal Code that ban the possession, sale, manufacture, or transfer of nunchaku. In doing so, the Court granted relief somewhat beyond what I had asked for (but I am not about to complain). Thanks to the many who have helped in many ways along the way. It has been a path with heart.

A pdf copy of the Court’s December 14, 2018, decision is here.

Judge Chen’s opinion is worth reading, if for nothing else than reading a legal distinction between Old School nunchaku use “and freestyle, which is “more flashy, spinning, less effective, [and] more coordination based.”” There are certainly other points of interest, especially in Chen’s conclusion that the plaintiff’s demand was too limited — and that federalism prevented her from following it. Maloney had only asked that the nunchuck ban be limited to outside the home, but Chen ruled that it’s not her job to fix poorly written statutes:

While courts, under some circumstances, might be able to reform a statute to make it constitutional by “sever[ing] its problematic portions while leaving the remainder intact,” that is not possible here given how Section 265.01(1) is constructed. Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006). To achieve the remedy Plaintiff argues that he is seeking would require the court to write in an exception to the complete ban on nunchaku in Section 265.01(1). This the Court cannot do here. Id. at 229–330 (holding that courts must “restrain [themselves] from rewrit[ing] state law to conform it to constitutional requirements even as [courts] strive to salvage it” because, to do more, would go beyond “devis[ing] a judicial remedy” and, instead, “entail quintessentially legislative work” that is a “far more serious invasion of the legislative domain than [a court] ought to undertake”) (citations and internal quotation marks omitted). Moreover, as discussed infra, Section 265.01(1) as applied to nunchaku constitutes a “‘complete prohibition[]’ of [a] Second Amendment right,” which, “under Heller[,] . . . [is] always invalid.”

To attempt to amend the statute would be “constitutional overreach,” Chen writes, and thus sets aside Maloney’s more limited request in order to address the entire law. The test for 2nd Amendment challenges is not whether a weapon is dangerous, but whether it is in “common use” by “law-abiding citizens.” Not only is that so obvious that the state of New York never bothered to dispute it, the respondents never even proved that the weapon has any significant criminal use anywhere:

Furthermore, although the criminality associated with a weapon is not the only relevant inquiry, NYSRPA, 804 F.3d at 256, here, there is virtually no evidence that nunchakus are associated with, or have been used to engage in, criminal conduct since Section 265.01(1) was amended to include nunchaku over forty years ago.20 The only evidence presented by Defendant as to the unlawful use of nunchaku are five nunchaku prosecutions, two cases of assault and three cases of possession, between December 14, 2014 and January 11, 2017 in Nassau County. (Dkt. 199-3.) Moreover, Defendant presents no national data on the unlawful use of nunchaku.21 Given Defendant’s concession that the nunchaku is primarily a tool of martial arts, pointing to these isolated incidents falls far short of Defendant’s burden of establishing that the nunchaku’s typical use is an unlawful one. (Dkt. 213, at 2 (Defendant stating that, “[t]here is no question that nunchaku are martial arts weapons”).)22 Moreover, unlike a sawed-off shotgun, gun without a serial number, or pipe bomb—weapons that courts have found to be outside the ambit of Second Amendment protection—nunchaku have no special propensity for unlawful use. Fyock v. Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015). In fact, its intended use as a weapon for recreational martial arts practice and training appears to greatly outstrip its use in crime.

Moreover, the state’s argument that the “dangerous potential” of nunchucks isn’t an argument at all. The judge doesn’t go to the common-sense argument that a firearm is clearly more dangerous than a nunchuck, but the silliness of the “dangerous potential” argument as applied to two sticks and a short chain speaks for itself. Instead,  Chen quotes Caetano in dismissing this argument:

“If Heller tells us anything, it is that [weapons] cannot be categorically prohibited just because they are dangerous,” since the “relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.” Caetano, 136 S. Ct. at 1031 (Alito, J., concurring); see also NYSRPA, 804 F.3d at 256. 23

The state of New York will likely appeal this case, but Chen’s reasoning looks quite solid and rooted in Supreme Court precedent. If it gets that far, it might require a recusal from Sonia Sotomayor, who ruled on an earlier challenge by Maloney while she sat on the Second Circuit Court of Appeals. The case was interesting enough at that time that Orrin Hatch brought it up during her confirmation hearing as a Second Amendment issue, as the Washington Post’s article reminds readers. Sotomayor scoffed at the notion at the time, making public remarks that may (or at least should) disqualify her as biased if this iteration of Maloney makes it to the top court.

The biggest lesson here is that lawmakers should refrain from legislating in the midst of a moral panic. It’s almost quaint to think that a few martial-arts movies could have catalyzed a state legislature into banning two sticks attached by a short chain as a dire threat to the public without any data whatsoever to support it. It’s almost quaint. It’s legitimately worrisome, especially since we never seem to learn the lessons of moral panics.

Update: Added clarification about Maloney’s argument and Chen’s decision to take a broader scope.

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David Strom 6:01 PM on February 01, 2023