SCOTUS GVRs Maloney v. Rice back to CA2

[wildhawker]

See: http://volokh.com/2010/06/30/are-nun...ment-purposes/

Yesterday, the Supreme Court sent Maloney v. Rice — the challenge to New York’s nunchaku ban — back to the Second Circuit. The Second Circuit had initially rejected the challenge on the grounds that the Second Amendment was inapplicable to states. Now it will probably have to decide whether nunchaku count as “arms” for Second Amendment purposes. For my analysis of what “arms” should mean, and for citations of opinions on whether weapons other than firearms should qualify under state constitutional right-to-bear-arms provisions, see PDF pp. 19–23 of my Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199 (2009).

I should note that some bans on particular kinds of weapons might be upheld on the grounds that, even if the weapons aren’t arms, the law (1) leaves open pretty self-defense tools that are at least pretty much equally effective, and thus (2) doesn’t substantially burden (and therefore “abridge”) the right to keep and bear arms in self-defense. (See PDF pp. 12–19 and 41–45 of my Implementing the Right To Keep and Bear Arms for Self-Defense, 56 UCLA L. Rev. 1443 (2009).) But I suspect that the ban on possessing and therefore carrying nunchaku can’t be justified on these grounds, since in New York people aren’t generally free to publicly carry guns and other effective self-defense weapons (except pepper spray, but I don’t think that’s quite interchangeable with nunchaku).

08-1592
MALONEY, JAMES M. V. RICE, KATHLEEN A.
The petition for a writ of certiorari is granted. The
judgment is vacated, and the case is remanded to the United
States Court of Appeals for the Second Circuit for further
consideration in light of McDonald v. Chicago, 561 U.S. ___
(2010). Justice Sotomayor took no part in the consideration or
decision of this petition.

[stix213]

I've never understood the bans on nunchaku. They require a significant amount of skill to use, making the majority of people more lethal with a butter knife in hand instead of these.

[yellowfin]

This could be good or at very least slightly less bad than before. I just hope Maloney is only a half-hearted saboteur rather than a full out kamikaze.

[nick]

I've never understood the bans on nunchaku. They require a significant amount of skill to use, making the majority of people more lethal with a butter knife in hand instead of these.

They look scary in movies, same as AR-15s and AK-47s with certain cosmetic features. The same logic is used for nunchakus as is used for the so-called "assault weapons".

[HondaMasterTech]

I've never understood the bans on nunchaku. They require a significant amount of skill to use, making the majority of people more lethal with a butter knife in hand instead of these.

That's funny. If I were approached by a person swinging them at me I would probably wait a minute before reacting because most likely I'd get to watch them hit themselves in the back of the head.

[jdberger]

A favorable decision on this could help to completely revamp CA's dangerous weapons code.

[MichaelKent]

I've never understood the bans on nunchaku. They require a significant amount of skill to use, making the majority of people more lethal with a butter knife in hand instead of these.

Yes, plus somebody not experienced or practiced with Nunchaku is more liable to harm his/herself than anybody else! In terms of public threat, they're minimal.

And could you imagine somebody trying to rob a bank or liquor store with a nunchaku? Poor bastard would probably get shot.

I really think legislators just watched a bunch of action movies one time and decided to note anything that looked dangerous. Nunchaku, shuriken, etc... Oh that gun has a pistol grip, that must make it an "assault weapon."

[elenius]

I sure hope this isn't the first 2A case that comes before SCOTUS after McDonald (as much as I support New Yorkers' right to play Teenage Mutant Ninja Turtles on the streets

[the_quark]

I sure hope this isn't the first 2A case that comes before SCOTUS after McDonald (as much as I support New Yorkers' right to play Teenage Mutant Ninja Turtles on the streets

Well, my hope is it never gets there, at all. Heller says you have a right to own arms, specifically pistols. McDonald says that applies to the states. It's hard to imagine any sort of argument that says the state has a compelling interest in controlling nunchucks, but doesn't for pistols.

I mean, who knows what the court will actually do, but it's really hard for me to imagine this law isn't struck down by the lower court in a one-page opinion, and then all the state's appeals are denied.

[wash]

I cringe every time I hear about Maloney.

I hope for a favorable outcome but I'm afraid he'll blow it.

[7x57]

I've never understood the bans on nunchaku. They require a significant amount of skill to use, making the majority of people more lethal with a butter knife in hand instead of these.

The reason is simple--being strange, they are easier to demonize. Weapons that can be banned should be banned, because each incremental step narrows the hated right to arms a bit more.

Same rationale as the NFA, actually. The playbook hasn't changed a bit.

7x57

[wildhawker]

Well, my hope is it never gets there, at all. Heller says you have a right to own arms, specifically pistols. McDonald says that applies to the states. It's hard to imagine any sort of argument that says the state has a compelling interest in controlling nunchucks, but doesn't for pistols.

I mean, who knows what the court will actually do, but it's really hard for me to imagine this law isn't struck down by the lower court in a one-page opinion, and then all the state's appeals are denied.

I have to agree with Brett; this is a very plausible outcome.

[vandal]

This is one ban that makes perfect sense to me, because govt exists to protect us from ourselves. My elbows have never worked right after working my wicked nunchuk moves in front of the last Bruce Lee movie during daytime TV... The bruise on my forehead did mostly heal though.

Passing healthcare reform but allowing nunchucks to the general populace strikes me as being at cross purposes. Like encouraging people to stop smoking with ads sponsored by tobacco companies...

[RomanDad]

This is one ban that makes perfect sense to me, because govt exists to protect us from ourselves. My elbows have never worked right after working my wicked nunchuk moves in front of the last Bruce Lee movie during daytime TV...

Nevermind your elbows.... MY BALLS!

[7x57]

Generally, I am very very pessimistic about this case. However, Eugene Volokh isn't a starry-eyed 'no law is Constitutional' type, so if he has hope then I guess I should too.

To jdberger: indeed a positive result would be great--but a negative one could be very damaging. At some point we really have to protect pocket folders, and losing them over a weapon that just looks kooky to a judge would be really sad.

7x57