NY: Federal Judge, Obama Appontee: Second Amendment Protects most Arms, Nunchakus

On 14 December, 2018, a New York District judge, Pamela K. Chen, an Obama appointee, has struck down a ban on nunchakus, as unconstitutional.

Consider the timeline and history of this ban and its demise.

In 1974, in response to "Kung Fu" movies, New York banned the possession, manufacture, transportation and transfer of Nunchakus. Nunchakus or "chuka sticks" were made into a prohibited weapon by statute.

The New York ban followed the process for weapons bans in the United States. The process has been this:

1. Demonize the weapon to be banned in the Media by citing a few anecdotes, not backed up by statistical evidence.

2. Push for a ban in the legislature, based on the media anecdotes, backed up with selective testimony by a few law enforcement officials.

3. Ignore protections on the right to keep and bear arms at the State and Federal level.  Opposition is unorganized. Support for a particular weapon (slung shot, machinegun, switchblade, gravity knife, sap, nunchakus, ballistic knife, stun gun) is weak. Media support for a ban is strong. The Media promotes the ban as "common sense".

4. Include exceptions for law enforcement.

5. Pass the bill with accolades from the media.

Twenty six years later, a New York lawyer and amateur martial artist, James M. Maloney,  was outraged by the idiocy and injustice of the law. The law did not allow him to teach his own sons, in the privacy of his own home, a martial art he had developed using nunchakus. He was charged with possession of nunchakus  in his home.  Nunchakus are commonly used in martial arts training in 45 states.  Three years later,  he filed a lawsuit against New York. The case takes 15 years.

2003. Plaintiff filed the suit against the Nassau County District Attorney, claiming the law violated the Second Amendment. This was before the Supreme Court upheld the Second Amendment in the Heller decision in 2008. Maloney is a lawyer and an amateur martial artist.

2007. The case was dismissed by the trial judge. Maloney appealed.

2008. Supreme Court affirms the Second Amendment with the Heller decision.

2009. The dismissal was upheld by the Second Circuit.  Maloney appealed. The Supreme Court grants a write of certiorari (agrees to hear the case).

2010. The Supreme Court finds the Second Amendment applies to the states in the Mcdonald decision

2010. The Supreme Court vacates the Second Circuit judgement from 2009 and sends the case back to the Second Circuit.

2010. The Second Circuit remands the case back to the District Court.

2013. The case is transferred from the original judge, to Judge Chen.

2017-2018. A bench trial is held.

Present. Judge Chen finds the law unconstitutional under the Second Amendment. Maloney wins - at least until New York decides to appeal.

Judge Pamela K. Chen's decision is well written and clear. It takes apart the process used to create many infringements on the Second Amendment. It relies heavily on the decisions in Heller, McDonald, and Caetano from the Supreme Court and on the New York State Rifle and Pistol Association v. Cuomo decision at the Second Circuit, from 2015.

Here are important findings in the decision, directly cited as precedent from other decisions:

The burden of proof is on the government.

The government has to prove a particular class of weapons is *not* covered by the Second Amendment. All bearable arms are presumed to be covered. There are limited reasons to exclude Second Amendment protection from a class of arms.

The government must have evidence a particular class of arms is *not* covered. It cannot just state the arms are "dangerous and unusual", not in common use, or particularly suited to crime instead of lawful uses by ordinary citizens. From the decision:

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.

Lawful use is not limited to self defense in the home. It includes recreation and all lawful uses. 

Note the clear logic in the decision about use in crime. To fail to be under Second Amendment protection, the government has to show, with evidence, that lawful use of the arm is uncommon compared to criminal use.

"Common use" has become “opaque and contradictory” in the lower court decisions. Showing an arm is not "commonly used" is insufficient to bar it from Second Amendment protection. The court relies on whether the arm is typically possessed for illegal use. From the decision:

Defendant cannot simply prove that nunchakus are not in common use in order to rebut the prima facie presumption of Second Amendment protection; Defendant must show that the “typical possession” of nunchakus is for an unlawful purpose. Id. at *3 & n.3. Notably, neither the parties nor the Court has “identified a single case in which a court has found that a bearable arm is outside of the scope of the Second Amendment simply because it is not in ‘common use.’” Id. at *2 (collecting cases).

To show an arm is excluded from the Second Amendment under the dangerous and unusual provision in Heller, it must show the arm is both dangerous and unusual.  All arms are considered dangerous, therefore the government must show the arm is "unusual".

This is a difficult burden to prove. Nearly all current weapons bans fail this test. Exceptions could be things like backpack nuclear devices, pipe bombs, poison gas, and biological weapons. They are not typically used for lawful purposes. This case did not address the keeping and bearing of arms specifically for military purposes.

Interest balancing is specifically forbidden. Most of the decisions in the circuit courts are based on interest balancing. That approach was decisively forbidden by Heller. It has been ignored by several circuit courts. The Supreme Court has refused to take a case to rebuke the lower courts. Most of the circuit court bans rely on an interest-balancing tests that start with "the government has a clear interest in ..."

The meaning of Longstanding is unclear in the lower courts, but must be from the middle of the 20th century or before.  A statute created in 1974 falls outside of longstanding.

The logic of the court, in this decision, destroys the typical media-legislative process used to pass infringements on the Second Amendment.

Mere anecdotal stories in the media are not evidence of typical criminal use.

Most weapons are used far more commonly for lawful purposes than for crime.

Lawful purposes include every lawful purpose, not just self defense in the home.

The burden of proof is on the government, not the citizen. The government may not simply say "we have good reason to ban this" without evidence.

Few weapons bans in the United States can survive if the above standards are applied.

Will this case be appealed by New York State, back to the Second Circuit?

New York has elected a radical leftist as the Attorney General, Letitia James. James has said she proposes to investigate President Trump, all his family, and all his associates in the hope of finding crimes they can be prosecuted for.  James has been radically anti-Second Amendment.

Letitia James has stated she will use her position to go after the National Rifle Association and gun manufacturers.  Her focus has been on guns, not on other weapons such as nunchakus. She might decide not to appeal. Letitia James takes office on 1 January, 2018.

The current attorney general could decide to appeal. The State of New York has 30 days to appeal the decision. 

We should know by Monday, January 14, 2019.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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