Incorporating the 2nd Amendment Against the States – Kirkland & Ellis is on the Case

March 4, 2009

bill_of_rights1As I posted on Jan. 30th, the Second Circuit Court of Appeals recently decided the case of Maloney v. Cuomo. Jim Maloney (pictured, right) was charged with possession of  nunchaku (“nunchucks”) in his Long Island, New York home. He challenged the constitutionality of New York’s ban on nunchaku possession on 2nd Amendment grounds. But the 2nd Circuit held that the 2nd Amendment’s prohibition against laws that infringe on the right to “keep and bear arms” (as interpreted in DC v. Heller) does not apply to state laws.

I have been in touch with Mr. Maloney, since my earlier post, about his plans to take his case to the Supreme CourtThe good news is that the D.C. office of Kirkland & Ellis, LLP  has taken the case and will handle Mr. Maloney’s petition. They will argue that the 2nd Amendment, like most other individual rights, should be incorporated against the States. Thus, he hopes that the Supreme Court will prohibit state infringement of the individual right to own a weapon, just as it prohibits Congressional infringement. Mr. Maloney has agreed to write a guest post, giving us some background on the New York nunchaku ban, his case, and his future plans with regard to his upcoming petition before the Supreme Court:

New York enacted a ban on nunchaku back in 1974, after the new phenomenon of martial-arts movies had made nunchaku suddenly popular among serious martial artists and gang members alike.

New York’s legislature and Governor (Malcolm Wilson) hastily decided to impose a total ban on the instrument. The sponsor of the bill to ban “chuka sticks,” Assemblyman Richard Ross, wrote that the nunchaku “is designed primarily as a weapon and has no purpose other than to maim or, in some instances, kill.” New York City Mayor Beame expressed virtually identical sentiments. Police chiefs and DAs from around the state all weighed in with similar comments, all condemning “chuka sticks.” Manhattan District Attorney Frank Hogan (Robert Morgenthau’s immediate predecessor) wrote that “there is no known use for chuka sticks other than as a weapon.”

Against this strong tide to ban nunchaku only two voices of dissent emerged. The State of New York’s own Division of Criminal Justice Services sent a memorandum to the Governor dated April 4, 1974, pointing out that nunchaku have legitimate uses in karate and other martial-arts training, and opining that “in view of the current interest and participation in these activities by many members of the public, it appears unreasonable–and perhaps even unconstitutional–to prohibit those who have a legitimate reason for possessing chuka sticks from doing so.” Both the Criminal Justice Services memorandum and a similar one from the New York County Lawyers’ Association recognized that nunchaku have legitimate uses, and urged that the legislation be redrafted to permit martial artists to possess nunchaku. But the memoranda did not accomplish their objective, and the total ban was enacted, going into effect on September 1, 1974.

However, within just a few years, courts in other jurisdictions began to recognize that nunchaku have legitimate uses. For example, in 1982, the Supreme Court of Hawaii wrote: “Given the present day uses of nunchaku sticks, we cannot say that the sole purpose of this instrumentality is to inflict death or bodily injury. . . . We believe that nunchaku sticks, as used in the martial arts, are socially acceptable and lawful behavior, especially here in Hawaii where the oriental culture and heritage play a very important role in society.” State v. Muliufi, 64 Haw. 485, 643 P.2d 546.

A year later, the District of Columbia Court of Appeals wrote: “Since we are making a ruling concerning a weapon which apparently has not previously been the subject of any published opinions in this jurisdiction, it is worth making a few further observations about the nunchaku. Like the courts of other jurisdictions, we are cognizant of the cultural and historical background of this Oriental agricultural implement-turned-weapon. We recognize that the nunchaku has socially acceptable uses within the context of martial arts and for the purpose of developing physical dexterity and coordination.” In re S.P., Jr., 465 A.2d 823, 827 (D.C. 1983).

Back in New York, the total ban on any and all possession of nunchaku, even in the privacy of one’s home for peaceful martial-arts practice, has continued to the present day. Most disturbingly, enforcement efforts targeting in-home possession have increased since the start of the new millennium.

A press release from the Office of the Attorney General of the State of New York dated October 17, 2002, indicated that a settlement between a martial-arts equipment supplier in Georgia and the New York Attorney General included the conditions that the company provide then-Attorney General Eliot Spitzer with a list of New York customers who had purchased “illegal” weapons, including nunchaku, and that the company deliver written notice to their New York customers advising them to surrender those illegal weapons to law enforcement agencies.

According to the press release, a similar settlement was reached with another martial-arts equipment supplier in 2000. The press release quoted Spitzer as saying that such weapons, which include nunchaku, “have no place on our streets or in our homes.” (Worry about your own home, Eliot.)

There have been at least two recent criminal prosecutions for simple in-home possession of “chuka sticks” here on Long Island, where I live.

In August 2000, Nassau County police performed a warrantless search of my home in Port Washington while I was not present, found a pair of nunchaku, and charged me with misdemeanor possession of same. Although I was never convicted of any crime, the charge lingered for nearly three years before being disposed.

In 2003, just after the charge was dismissed, and finding myself with “standing” to challenge the constitutionality of New York’s nunchaku ban as applied to simple in-home possession (and being an attorney with a background in constitutional law), I brought a case in federal court in the Eastern District of New York.

The court explicitly recognized that the criminal charge against me for possession of nunchaku “was based solely on in-home possession, and not supported by any allegations that the plaintiff had used the nunchaku in the commission of a crime; that he carried the nunchaku in public; or engaged in any other prohibited conduct in connection with said nunchaku.” The court concluded: “Thus, the only criminal activity alleged against the plaintiff was his possession of the nunchaku in his home.” Unfortunately, the court found that there is no constitutional right protecting that interest.

On appeal to the Second Circuit, that court held that the Second Amendment does not protect the right to bear arms as applied against the states, and that the state had a rational basis for prohibiting possessing nunchaku. They never addressed my specific argument that the state lacked a rational basis for prohibiting simple in-home possession. See the Elliot Schlissel New York Law Blog’s initial post, “Can New York Legally Forbid You to Own Nunchucks?” At this time, the D.C. office of Kirkland & Ellis LLP has agreed to represent me pro bono in filing a petition for certiorari which due in late April. Updates about the case may be found on my dedicated website, www.nunchalukaw.com.

The other local prosecution for simple in-home possession of nunchaku occurred in Suffolk County, and the events began right around the time that the prosecution against me was being disposed. According to a federal civil-rights complaint, on January 25, 2003, Suffolk County Police broke down the door of the home of a Hispanic family in Brentwood and began executing a search warrant to find “drugs” that were suspected at the location because of “frequent traffic” to and from the home. As it turned out, no drugs were found even after a thorough search including the use of dogs. The family’s home-based Avon business explained the frequent visitors to the home. But the police did find an old pair of nunchaku hanging in a closet, and the man of the house, who admitted to owning them, was subsequently charged with misdemeanor possession.

The charges against him were not disposed until March 2006,w hen he was given an ACD (“Adjournment in Contemplation of Dismissal”). As of the date of this post, the civil-rights case against the Suffolk County Police is scheduled to begin trial before Judge Wexler of the Eastern District on March 9, 2009.

It is clear form the foregoing that New York can and will enforce the criminal statutes, enacted in 1974, that ban possession of the nunchaku even in one’s home. Eliot Spitzer’s civil actions against the martial-arts equipment suppliers, coupled with the two recent prosecutions on Long Island for in-home possession, make it clear that martial artists who wish to acquire and keep nunchaku in their homes for practice or self-defense must risk the possibility of criminal charges that could lead to a year in prison for doing so. That has been the state of affairs in New York for some 35 years.

Whether it will continue is a question that will (I hope) soon be up to the Supreme Court.

-James M. Maloney is an attorney and solo practitioner in Port Washington, New York.

(Mr. Maloney makes no admission, nor should any be inferred, that the above-photo was taken in NY)

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13 Responses to “Incorporating the 2nd Amendment Against the States – Kirkland & Ellis is on the Case”

  1. montjoie1095 Says:

    Why isn’t use “as a weapon [with] no purpose other than to maim or, in some instances, kill” a legitimate use?


  2. […] Problem: Gangs members using nunchaku. Proposed law: Ban nunchaku. […]


  3. I wish you luck with your case. People should indeed have the ability to keep and bear ancient weapons such as swords, quarterstaffs and nunchaku, just as with more modern weapons such as handguns.

  4. tgace Says:

    Id be interested to see the circumstances under which these arrests occurred. Why were the police in these homes and why did they decide to enforce this law?

  5. Jim Maloney Says:

    tgace:

    Why would that matter? If someone is prosecuted under an unconstitutional law, is it OK for the state to do so provided the person being prosecuted deserves it for something else they did? In my case police coerced me out of my own home without a warrant, then found nunchaku under my couch when they took advantage of my absence to perform an illegal search. As the district judge wrote:

    “The criminal charges for possession of nunchaku was based solely on in-home possession, and not supported by any allegations that the plaintiff had used the nunchaku in the commission of a crime; that he carried the nunchaku in public; or engaged in any other prohibited conduct in connection with said nunchaku. Thus, the only criminal activity alleged against the plaintiff was his possession of the nunchaku in his home.”

    In a more recent case, the home of a man in Suffolk County was searched pursuant to a warrant, which police had obtained based on a stakeout and observation of a lot of comings and goings to and from the home. It turned out that the family had an Avon business, and when the search was executed no drugs or paraphernalia were found, even though the place was torn apart and dogs were used, but they found a pair of nunchaku in a closet and brought a misdemeanor possession charge against the man. For over three years he went to scheduled appearances on that sole criminal charge, for which he could have been imprisoned for a year. Finally it was dismissed by means of an ACD.

    See http://homepages.nyu.edu/~jmm257/sostre-amended-complaint.pdf for details.

    In neither of the above cases was the conduct of the defendants such as to deserve to be prosecuted for mere possession of nunchaku, but I submit to you that if your question indicates that maybe unconstitutional laws ought to be applied against certain people in certain circumstances, then you are going down a dangerous path. Put another way, if the state is free to target people they do not like, and those people cannot be heard to complain that the law being used to target them is unconstitutional, then none of us is safe.

    I read somewhere:

    “Watch your thoughts, for they become words.
    Watch your words, for they become actions.
    Watch your actions, for they become habits.
    Watch your habits, for they become character.
    Watch your character, for it becomes your destiny.”

    If we think the protection of the Constitution applies only to the good guys, we are only a few stapes away from a destiny of totalitarianism.

    Jim Maloney
    http://www.nunchakulaw.com

  6. tgace Says:

    Hmmm..the tone and tenor of your reply to a simple question tends to fill out the “whys” a bit. I acknowledge that “why” does not equal “right”, or even “legal” but it does tend to explain a few things. The legality of the search in your case and the validity of the charge are separate issues. I still note a lack of detail as to what exactly the situation here was and if I took the “internet word” of every person on the wrong side of an arrest then EVERY search and arrest made by the police was “unconstitutional” lol!

    I have enforced the nunchaku law a couple of times myself. I have also let people go with them depending on the situation. Bottom line is that it is currently a valid law. Just because you may think its “unconstitutional” doesnt make it so. If it is successful in being deemed unconstitutional and its overturned I will gladly stop enforcing it.

    What about brass knuckles, “gravity knives” and “kung-fu stars”?

  7. tgace Says:

    Disregard…gotta love the net.

    http://www.law.com/jsp/law/sfb/lawArticleFriendlySFB.jsp?id=900005553287

    Dude..a 12 HOUR STANDOFF???


  8. […] 14, 2009 You may recall that a little over a month ago we reported the news that Kirkland & Ellis’ DC office was going to  handle the Nanchaku […]


  9. […] case that we’ve been posting on, Maloney v. Rice (it’s no longer captioned Maloney v. Cuomo) is still a strong possibility. Although Prof. […]


  10. […] legal e-pen pal, James Maloney, Esq., alerted me to this case and recently watched oral arguments  as well, and predicted that the new […]

  11. jalapenopecker Says:

    If the Bill of Rights don’t apply to states, then where in the USA do they apply?


  12. jala,

    They apply against federal government agents. Although most of the bill of rights have been held to apply to the states as well by the 14th Amendment. That now includes the 2nd Amendment, now that the Supreme Court’s McDonald decisions was handed down a couple of weeks ago.

  13. Duck Says:

    It’s been a good long while- has there been any activity on this matter since 2010?


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