Maloney v Rice : 2nd Circuit Cert Petition

[Al Norris]

In the 2nd Circuit case of Maloney v. Rice (the 2nd Circuit nun-chuka case), cert was filed on June 26, 2009, exactly one year of the date of the Heller decision. Link to PDF.

Maloney is pro se counsel of record.

Until reading the cert, I was actually unaware of all that had transpired in this case, that started on August 23, 2000!

As is usual, there is more here than has met the public eye. Maloney may well be a much better case than many have first reported; In this forum or in others.

What was Maloney charged with? Possession, within his home, of a proscribed (banned) device: i.e. Nun-chuks.

This was the only criminal charge and was a misdemeanor charge, which was later plead to a disorderly conduct violation with all criminal charges dismissed (January 28, 2003).

What I also wasn't aware of, was that Justice Ginsburg was the one who granted Maloney's request for an extension to file for writ of certiorari. Interesting tidbit, that. - I would speculate that Justice Ginsburg was also interested in seeing what the 9th Circuit might do. Coincidence, I think, that the 7th Circuit ruled so quickly. But in doing so, has given Maloney added fuel to his cert.

At any rate, on with this how I read this petition!

Maloney presents 2 questions to the Court:

1. Whether the Second Amendment’s individual right to keep and bear arms is incorporated against the States through the Due Process Clause of the Fourteenth Amendment.

2. Whether the Second Amendment’s individual right to keep and bear arms is a privilege or immunity of citizens of the United States applicable to the States under the Privileges or Immunities Clause of the Fourteenth Amendment.

To quote a few opening lines of the cert (with markup):

For, in this case, Petitioner James M. Maloney seeks a judicial declaration vindicating his constitutional right to self-defense and to the possession of weapons in his home against a modern incursion by the State of New York. Three decades ago New York criminalized the mere possession of an entire category of blunt weapons predominantly designed for defensive purposes. Consistent with the Fourteenth Amendment, state statutes that criminalize the simple ownership of a personal weapon of self-defense cannot stand. They are a foundational affront to the liberties of a free people. Heller, 128 S. Ct. at 2800 (equating the Second Amendment’s phrase “security of a free State” to the “security of a free polity”).

Maloney goes on to highlight the decisions of the three Circuits.

• The Second Circuit has held that the Rodriguez de Quijas principle of judicial hierarchy, together with Cruikshank, Presser, Miller, and precludes lower court incorporation of the Second Amendment.
• The Seventh Circuit agrees, but also appears to think, in significant tension with Heller, that the right of self-defense by force of arms is quaint and that to recognize it as applicable to the States would represent an assault on federalism.
• Finally, the Ninth Circuit believes that Rodriguez de Quijas is inapplicable and that the historical and legal case for Second Amendment incorporation under this Court’s modern lines of due process cases is clear.

What Maloney is saying is that while there is a split in the Circuits, it is now a three-way split. All of the decisions were on different grounds and that the Supreme Court must, at this point, reconcile those differences.

Like Gura, in his 7th Circuit cert, Maloney is hardest upon the 7th Circuit decision and as seen above, ridicules Eastbrook.

And what of the possible en banc hearing by the 9th Circuit? And its possible overturning of the panels decision? Here, Maloney shines, I believe, in addressing what could be a stumbling block that others have seen:

The question of applicability of Rodriguez de Quijas means that even if the Ninth Circuit vacates the Nordyke panel decision and grants rehearing en banc, 14 this Court should still take up the pressing constitutional issue of the Second Amendment’s reach without delay. For if Rodriguez de Quijas applies here, then a circuit split would normally be impossible. Hence, this Court should not hold up resolution of the issue of incorporation to see if further conflict develops (or persists). The residents of the 50 States should not be forced to wait for one or more circuits to hazard disobedience to Cruikshank, Presser, and Miller (and to Rodriguez de Quijas in the process), before they can know if they are truly entitled to partake in the same precious Second Amendment liberties that District of Columbia residents now enjoy under Heller.

Will the Supreme Court buy that argument? I think it likely, when the overall process is taken into account. Most expecially, as Maloney not only makes much the same Due Process and Equal Protection arguments as do the other certs from the 9th and 7th Circuits (albeit, in much shortened form), but also argues that all three cases are ripe for consolidation:

to the States invoked in this petition. Indeed, consolidating those cases with this case and granting certiorari over all of them as a unit would put before the Court the fullest possible range of factual and legal settings in which to consider and resolve the burning issue of Second Amendment incorporation.

Of course, Maloney then goes to why his case is better for cert than the others, if only one must be selected. The narrow grounds of home protection. Also noted that nun-chuks are defensive weapons, even used by police (tonfa), for non-lethal methods of control and defense.

Finally, Maloney gets to the P&I clause of the 14th. Maloney takes a different approach than either Kilmer (9th), Halbrook or Gura (7th). Maloney asserts that the Court should reinterpret Slaughterhouse rather than merely overturning it.

All in all, this is a good case for granting cert.

What would I like to see? I would agree with Maloney, consolidation of all three cases. This allows the Court to frame the question as narrowly or as broad as it pleases the Justices. It allows the Court to reinterpret the P&I clause, without striking Slaughterhouse, in such a way as to please both the liberal and the conservative sides of the Court.

I am actually happy with Maloney's cert and I feel that it adds to the other certs, rather than subtracts, as some have rumored. With this new petition for grant of certiorari, I feel we are about to once again, witness history in the making.

[gc70]

Interesting petition; thanks for the link, Al.

It looks like Kirkland & Ellis really wants a shot at overturning or reinterpreting the way Slaughterhouse gutted the privileges or immunities clause. I wish I was smart enough to guess where they want to go with a reinvigorated privileges or immunities clause.

[Tom Servo]

As is usual, there is more here than has met the public eye. Maloney may well be a much better case than many have first reported; In this forum or in others.

You're not kidding. I was unaware of the circumstances of his arrest.

For those who don't get a chance to read it, a telephone line worker claimed Maloney pointed a rifle at him. Once police convinced Maloney to exit the house, they conducted a warrantless search, in which they found no rifle. Other weapons in the house (including legally-owned pistols) were confiscated, and he was basically charged with whatever they could think of.

I am also remiss in not taking Mr. Maloney's case as seriously as I should have. It would make a splendid trinity with the 7th and 9th Circuit cases. The petition is very well argued, if a bit less scholarly and more terse than Gura's.

Heller’s logic and its careful survey of history will not permit the Second Amendment to be shunted to the side and relegated to second-class status in an arbitrary pecking order of constitutional rights. (p. 24)

[maestro pistolero]

I hope he got his pistols back.

[maestro pistolero]

If not for this case, weapons other than firearms would very likely be overlooked at this crucial moment in the fight to restore our rights. If something, anything, happens to the supply of guns and ammo, we will really be glad if the right to self defense by any other reasonable means is specifically re-invigorated in the next court's decision(s). That should mean bows, clubs, daggers, spears, swords, nun-chucks, etc.

OC'ing a sword may be a little over the top at the grocery store, but I ought to be able to have one in my house or on my own property.

These are the ancient tools of self protection. If the argument that the right to arms predates our republic carries any weight, then a right that predates civilization itself deserves more than a passing nod.

[gc70]

The different scope of Maloney might also attract different groups, such as knife owners faced with a re-definition - and ban - of switchblades.

[Tom Servo]

OK, this may seem too political, but bear with me.

If the ideal scenario takes place, and Maloney gets consolidated with Gura and Halbrook's cases, then Sotomayor will be pressured to recluse herself. She was reversed in Ricci v. DeStefano today, and it's worth noting that the balance of Justices was exactly the same as it was in the Heller case.

That would leave us with Scalia, Thomas, Alito, Kennedy and Roberts being sympathetic to Maloney/McDonald/NRA, with only three dissenters.

So, we've got our Four Horsemen, along with a justice named Roberts swinging to the conservative side. Gold star for anyone who catches the historical irony.

[Al Norris]

Nobody knows?

The four Justices, referred to as the Four Horsemen, were Pierce Butler, James McReynolds, George Sutherland and Willis Van Devanter.

In the middle were Chief Justice Charles Evans Hughes and Justice Owen J. Roberts.

C.J. Hughes often sided with the liberal Justices, Louis Brandeis, Benjamin Cardozo, and Harlan Fiske Stone, while Justice Roberts often sided with the conservatives of the Court.

Between 1932 and 1935, they were instrumental in invalidating several key parts of Roosevelt's New Deal.

The similarity ends there, as Justice Kennedy is the swing vote on the present Court, not C.J. Roberts.

[Ricky B]

Parts of the petition are well done, but it's way too long. The purpose of a petition for cert is to explain to the court why it should grant cert, not why the court should reverse the lower court. Nor is it to show how erudite the lawyer is. The petition doesn't start talking about the split in the circuits, a traditional ground for granting cert, until page 16, and the petition doesn't suggest avoiding the rationale of The Slaughterhouse Cases until page 28. The petition, in my quick reading, does not seem to suggest that overruling The Slaughterhouse Cases should now be considered.

Fortunately, the questions presented are properly framed, and the clerks, who will be well aware of Heller, don't have to read beyond that to decide whether to recommend granting cert to their respective justices.

I found it particularly interesting that Mr. Maloney left his house after it was surrounded by the police only after consulting with his counsel and his rabbi. People named Maloney typically have priests, not rabbis!

[publius42]

Originally Posted by Antipitas

Maloney is pro se counsel of record.

Huh? He's representing HIMSELF in front of the Supreme Court? Who the heck is this guy, and hasn't anyone told him that even lawyers get lawyers?

[Al Norris]

Publius42, you can get an idea of who James Maloney is, from reading his webpage at NYU. Links to lots of info about this guy.

The lawfirm that is listed on the cert petition is the firm he works with when not as a private legal advocate.

[Ricky B]

"Maloney is pro se counsel of record" is not the best description. Lawyers from Kirkland & Ellis are counsel of record, and Maloney is shown as being of counsel to K&E.

[Jim March]

And the guy is himself a lawyer.

[Al Norris]

Thanks for the clarification, Ricky.

I had read that as pro se operating out of the offices of the firm he is still associated with.

[Ricky B]

The term pro se means "for oneself." It refers to a litigant (whether or not a lawyer) who is acting as his own advocate.

An alternative term is sometimes used: in propria persona, which is sometimes abbreviated to in pro per. That means something like "in his own person" (i.e., not through an attorney).