Second Circuit Court of Appeals Declares 2A Does Not Apply to States

[Bartholomew Roberts]

The case in question is Maloney v. Cuomo (http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA3LTA1ODEtY3Zfb3BuLnBkZg==/07-0581-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irl3881/1/hilite) 07-0581-cv Decided: January 28, 2009

Short version: They relied on Presser v. Illinois as precedent and said that if the Supreme Court wants to overturn it to apply Heller, then it is up to them to do it. Defendant was guy who got busted for nunchuks and threw in a Second Amendment claim as an afterthought. Whole decision is very short and not big on scholarship.

[maestro pistolero]

But, the guy has a point. 2A does not discern between firearms or any other arms. For thousands of years the most common 'arm' was a sword or a bow. 2A just says arms.

[Bartholomew Roberts]

True; it also highlights another issue - the problem of getting a circuit court to step up and say that the Second Amendment applies to states so we can get a split in the circuits. That would certainly encourage the Supreme Court to revisit the issue sooner rather than later.

[Gary L. Griffiths]

This isn't the case to appeal. In Heller the court approvingly cited Miller talking about militarily useful weapons in common use by the people. It's hard to see a set of numchuks having military value. :rolleyes:

[HarrySchell]

Have to agree with maestro.

"Arms" is a term of art flowing down through law and related literature and is not specific to firearms but any mechanical means of defense.

I have thought of it on a go-forward basis that if/when firearms, the current best arm for self-defense, become obsolete, 2A will still apply because its focus is self-defense and guarenteeing the means to self-defense shall not be infringed. Ergo, a laser pistol or whatever comes to pass is covered by 2A in 50 years just as my Kimber is today.

I dunno even what a numchuck is...an edged weapon, I guess, (something you chuck at a num?) but I suspect it has limited military application or is not in common use for self-defense.

This is not to excuse the thin scholarship of the opinion.

A basic individual right...I don't understand how it cannot be incorporated and apply to the states. Except that some bloody lawyers muck every damn thing up with the parsing of words to keep themselves busy.

[armsmaster270]

However nunchucks in certain jurisdictions are "Prohibited Weapons" and just as illegal as Destructive Devices and Machine Guns

[maestro pistolero]

They are pairs of sticks with a short piece of chain, rope or cable between the ends, so that it may be swing or whipped around at a higher velocity. Next we'll be banning sticks without the connector, and we'll all be safe from attack at that point. :rolleyes:

[Tom Servo]

I dunno even what a numchuck is...an edged weapon, I guess, (something you chuck at a num?) but I suspect it has limited military application or is not in common use for self-defense.
Ninja weapons. The 2nd Circuit could have argued that they fell under the "dangerous and unusual" part of the Heller decision.

At this point, the lower courts are still falling back on Cruikshank and Presser for the most part. They've been forced to accept Heller, but they're going to do anything they can to stop it from spreading outside the District.

"OK, so Scalia created this damned individual right to ban arms, but we'll stymie it by claiming it only applies between individuals and the Federal government. Not in my backyard, people."

This was an odd case, and not the one I'd want before SCOTUS. Not to knock the guy, as he seems kinda neat. It's just that I'd rather see it involve firearms, as that's what the national debate concerns.

[tyme]

Indeed, as Appellant concedes, when the statute was under consideration, various parties submitted statements noting the highly dangerous nature of nunchakus. For example, New York’s Attorney General, Louis J. Lefkowitz, asserted that nunchakus “ha[ve] apparently been widely used by muggers and street gangs and ha[ve] been the cause of many serious injuries.” Mem. from Attorney Gen. Louis J. Lefkowitz to the Governor (Apr. 8, 1974). And the sponsor of the bill, Richard Ross, stated that “[w]ith a minimum amount of practice, [the nunchaku] may be effectively used as a garrote, bludgeon, thrusting or striking device. The [nunchaku] is designed primarily as a weapon and has no purpose other than to maim or, in some instances, kill.”

I would like to see these sorts of arguments shredded before the Supreme Court. They reek of emotional hysteria and a complete absence of rational thought.

[Huey Long]

If the courts decide not to incorporate the Second Amendment, it could actually be to our advantage in some ways.

If the Second Amendment isn't incorporated, SCOTUS would be more likely to strike down federal gun laws, knowing that equivalent state laws wouldn't be stricken along with them. I'm thinking particularly of a possible future federal AWB.

[johnwilliamson062]

I have limited experience with a number of East Asian designed weapons. The 'unchuk' is by far the worst I have ever used.
History of the 'nunchuk', as I understand it:
With the rise of Samurai peasants in Feudal Japan were disallowed from owning weapons. There was some sort of agricultural device similar to modern 'nunchucks' which peasants used in the few peasant rebellions there were in Feudal Japan. I believe it was used for "threshig," whatefer that is. In the 1930s the film industry wanted a really cool weapon that looked great on screen. They settled on the 'Nunchuk'. Mall ninjas everywhere have been armed with them ever since.

nunchucks are lamer that laser pointers duct taped to P22s.

All this brings up an interesting question, what were mall ninjas before malls? Barber shop Ninjas?

[Huey Long]

I have limited experience with a number of East Asian designed weapons. The 'unchuk' is by far the worst I have ever used.
History of the 'nunchuk', as I understand it:
With the rise of Samurai peasants in Feudal Japan were disallowed from owning weapons. There was some sort of agricultural device similar to modern 'nunchucks' which peasants used in the few peasant rebellions there were in Feudal Japan. I believe it was used for "threshig," whatefer that is. In the 1930s the film industry wanted a really cool weapon that looked great on screen. They settled on the 'Nunchuk'. Mall ninjas everywhere have been armed with them ever since.

Nunchucks are illegal here in Arizona and have been for as long as I can remember. I can't imagine the reason why. Maybe a rash of nunchuck killings back in the '70s?

Anyway, it's funny when you consider that this is a state where you can buy a gun with no background check or paperwork and strap it on and walk down the street with it with no permit. There are other states where nunchucks are illegal, but they're all the type of states you'd expect that kind of law in (California, Massachusetts, etc.)

[Bartholomew Roberts]

Nunchucks are illegal here in Arizona and have been for as long as I can remember. I can't imagine the reason why. Maybe a rash of nunchuck killings back in the '70s?

Probaby the rash of teenaged boys singing castratto after playing with nunchucks.

There was some sort of agricultural device similar to modern 'nunchucks' which peasants used in the few peasant rebellions there were in Feudal Japan. I believe it was used for "threshig," whatefer that is.

From what I have read, they are based off a flail for threshing rice on Okinawa. Threshing means you beat the rice (or other grain) until the grain falls out of the husk. I think they became popular as weapons because under the Shoguns, there were just not a lot of weapons allowed for the peasantry and two sticks tied together with rope was about as post-ban as you could get. Ironic that these days, many states ban their use even though they are pretty mediocre as weapons.

[vranasaurus]

I can't see any logical argument for not incorporating the second amendment. Any argument doing so would almost certainly be any argument against incorporating any of the bill of rights. If part of the BOR applies to the states shouldn't the rest?

two sticks tied together with rope was about as post-ban as you could get

Thanks for the laugh.

All this brings up an interesting question, what were mall ninjas before malls? Barber shop Ninjas?

IMO, mall ninjas, did not exist in the pre-tactical era. The creation of malls and their increased popularity coincided with the proliferation of tactical accessories and the popularity of their use. With the decline in mall popularity my question is what will all the mall ninjas become? Walmart ninjas?

[tube_ee]

The 2nd Circuit held that, as Presser was a Supreme Court precedent, they, as an inferior Court, are still bound by it until the USSC overrules it.

IOW, a fairly minimalist (judicially) decision.

The bigger lesson is, we need to be very careful about the cases we file, and the plaintiffs we choose, because it only took one bad plaintiff and one bad lawyer to screw us all for 70 years.

This ain't amateur hour, people.

--Shannon

[stephen426]

The attacks on our second ammendment rights are increasing. I can't believe what type of idiotic ruling would prohibit nunchucks. They are not ranged weapons and probably have the same capability to inflict damage as a baseball bat. Florida has laws regarding brass knuckles, which I find kind of strange.

[azredhawk44]

Nunchucks are illegal here in Arizona and have been for as long as I can remember. I can't imagine the reason why. Maybe a rash of nunchuck killings back in the '70s?

Seriously?

Can you cite the ARS for this?

I've had a pair since I was trained on their use at age 15 in a martial arts school in Washington state. They're collecting dust in the garage right now. I also have sai in the same box.

Heck, I think I've even seen them for sale at gun shows at the state fair grounds.

If they're illegal then they'll come on the next camp trip and get burned... they aren't that great of a weapon in comparison to a non-pointy stick of at least 3 feet in length... let alone the pistol on my hip.

ETA: Well, I'll be darned.

ARS 13-3102.A.3 regarding prohibited weapons and posession. Nunchaku are listed later on under 13-3101.A.7.e. Fortunately, I've got the "knowingly" thing going on. Now that I know, I'll go cut the cord connecting the sticks and all I've got are just... sticks.

That's pretty sad though.

[johnwilliamson062]

IMO, mall ninjas, did not exist in the pre-tactical era.
You know there was some dude walking around with lightening cuts in his sword blade, a candle holder on the hand-guard and some ridiculous spring loaded quick-draw setup back in the day.

[vranasaurus]

You know there was some dude walking around with lightening cuts in his sword blade, a candle holder on the hand-guard and some ridiculous spring loaded quick-draw setup back in the day.

Wouldn't that be a market Kanighat and not a mall ninja?

[Tom Servo]

Honestly, the plantiff is not mall ninja material. He's a maritime lawyer who practices martial arts. He seems to be quite knowledgeable about Asian culture, and it would appear that he's far too mature to resort to adolescent machismo to impress people.

Fact is, he wanted nunchuks for his hobby, and he was aggrieved that the state of New York had outlawed them.

[maestro pistolero]

The whole concept of arms restriction is absurd on it's face. The worst thing my (police lieutenant) brother has seen in 20 years was a guy that got his head bashed in with a baseball bat. No set of nun-chucks I've ever seen could do that.

Are we going to outlaw baseball bats, or just continue to regulate the behavior with baseball bats?

The issue is crime and violence. To blame a gun, or nun-chucks, or a bat for violence is to blame a spoon for obesity, and a car for a drunk driving death.

The almost complete absense of guns did not prevent genocide in Rwanda just a few short years ago. 800,000 people died, mostly by machete. A mini holocaust in our own time, accomplished with a weapon that's older than Moses.

Humans who are bent on evil will simply never be at a loss for the means to attempt it. It is only the good-hearted majority of us who can impact evil, and only by retaining the means to oppose it.

Until hearts, minds, and living conditions are changed, we are not only wasting precious time, money, and legislative resources on more useless measures that criminals will merely scoff at, we are closing the noose around our own liberty which has served us very well indeed for some 230-plus years.

[Musketeer]

Note that nunchucks are readily seen in use in martial arts schools and tournaments across NY.

[winken]

I think the old Bruce Lee movies started the fad in the early 70's, Sheesh I'm getting old.

[shortwave]

Well said maestro

[armedtotheteeth]

Nunchucks are legal as long as the evil piece of rope is not connected betwixt the sticks. This is known as disassembled. :D

[Socrates]

IIRC, Kali law was they are illegal, unless you are a martial artist, practicing inside a dojo, or some such garbage. At one point you might have had to qualify as some sort of expert, i.e. black belt to have them.

I enjoyed them, and we bought all kinds of trick ones. My favorites were couple of tubes of metal that interlocked into one stick, twist it, and it came apart, with a piece of steel cable for a rope. VERY cool, and, not a joke.

Really way too much time on the legislatures hands. Cut them in all states to 3 months, and then they wouldn't have time to pass all this stupid stuff. Same thing for Congress...

[44 AMP]

Focusing on the case, and what is, or is not a weapon was not the point, as I read it. I understood the point of the question to be whether or not the 2nd Amendment applies to States.

Short answer, it does not. The 2nd Amendment applies to the Federal Government. The milita clause, and the statement about the poeple's right are explanation for why the Feds shall not infringe that right.

Every state has in their state constitution, a section affirming the people right to arms. In some cases, it uses the language used in the Federal Constitution. In other cases, the language is similar, but different. That section of the State constitution is what is relevant to the state case, not the 2nd Amendment of the US Constitution.

And FYI, the story as I heard it was that hundreds of years ago, when the Japanese took over Okinawa, they banned the peasants from having weapons. Swords, spears, and bows. The Okinawans delveoped a martial art using the rice thresher (now known as nunchaku), because, since it was a farm tool (and needed to harvest the rice the Japanese ate) it was not banned.

[Socrates]

The Second Amendment MIGHT apply to the states, if it is incorporated by the 14th. Now we need another Circuit Court to declare it does apply, we have a conflict, and, the Supreme Court will likely rule