I’m giving a lecture this morning on the Second Amendment (partly anyway) and while looking up some info on The Second Circuit’s per curiam (Sotomayor’s former court — she heard this case) “Nunchaku” opinion (Maloney v. Rice) where they held that the 2d Amendment applied only to the federal government and that states were free to limit arms as they saw fit (and that “nunchucks” were arms) — a position I would agree with actually, but is hypocritical on her part since she clearly favors total incorporation of the Bill of Rights against the States — except when it would give people more liberty). Anyway… I came across these… well worth your 3 minutes or so. Here’s some related info on all the issues (from this and other cases) from the Volokh Conspiracy. If SCOTUS takes it an interesting question will be what constitutes “arms”.
The Maloney v. Rice opinion is below the fold (edited slightly for format, but not for content):
JAMES M. MALONEY, Plaintiff-Appellant, –v.– ANDREW CUOMO, in his official capacity as Attorney General of the State of New York, DAVID PATERSON, in his official capacity as Governor of the State of New York, KATHLEEN A. RICE, in her official capacity as District Attorney of the County of Nassau, and their successors,* Defendants-Appellees.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Governor David Paterson is automatically substituted for former Governor Eliot Spitzer as a defendant in this case.
Docket No. 07-0581-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
554 F.3d 56; 2009 U.S. App. LEXIS 1402
December 15, 2008, Argued
January 28, 2009, DecidedPRIOR HISTORY:
Appeal from a judgment of the United States District Court for the Eastern District of New York (Spatt, J.) dated January 17, 2007, granting defendants-appellees Andrew Cuomo and David Paterson’s motion to dismiss and defendant-appellee Kathleen A. Rice’s motion for judgment on the pleadings, and from an order dated May 14, 2007, denying plaintiff-appellant’s motion for reconsideration.
Maloney v. Cuomo, 470 F. Supp. 2d 205, (E.D.N.Y., 2007)OPINION
[*58] PER CURIAM:
Plaintiff-appellant James Maloney was arrested at his home on August 24, 2000, and charged with possessing a chuka stick in violation of N.Y. Penal Law § 265.01(1). A “chuka stick” (or “nunchaku”) is defined asany device designed primarily as a weapon, consisting of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict [**2] serious injury upon a person by striking or choking.
Id. § 265.00(14). 1 This charge was dismissed on January 28, 2003, and Appellant pleaded guilty to one count of disor-derly conduct. As part of the plea, he agreed to the destruction of the nunchaku seized from his home.
1 There are two sections of the New York Penal Law numbered 265.00(14).
Appellant filed the initial complaint in this action on February 18, 2003, and then an amended complaint on September 3, 2005, seeking a declaration that N.Y. Penal Law §§ 265.00 through 265.02 are unconstitutional insofar as they punish possession of nunchakus in one’s home. The district court dismissed the amended complaint as against the New York State Attorney General and the Governor for lack of standing, concluding that neither official is responsible for enforc-ing the statutes at issue. The district court granted defendant Nassau County District Attorney Kathleen Rice’s motion for judgment on the pleadings in relevant part because the Second Amendment does not apply to the States and there-fore imposed no limitations on New York’s ability to prohibit the possession of nunchakus. Appellant moved for recon-sideration on the ground that the district [**3] court had failed to consider certain other claims raised in his amended complaint; the district court denied that motion.
On appeal, Appellant challenges only the district court’s dismissal of his claims against Rice. 2 He argues, inter alia, that New York’s statutory ban on the possession of nunchakus violates (1) the Second Amendment because it infringes on his right to keep and bear arms, and (2) the Fourteenth Amendment because it lacks a rational basis. Neither of these arguments has any merit.2 Appellant makes no argument in his brief concerning the district court’s dismissal of his claims against the Attorney General and the Gov-ernor. We therefore deem any challenges to that aspect of the district court’s judgment waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005).
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799, 171 L. Ed. 2d 637 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265, 6 S. Ct. 580, 29 L. Ed. 615 (1886) (stating that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state”); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding “that the Second Amendment’s ‘right to keep and bear arms’ imposes a limitation on only federal, not state, legislative efforts” and noting [*59] that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174, 126 S. Ct. 1341, 164 L. Ed. 2d 56 (2006). Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we “must follow Presser” because [HN3] “[w]here, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.’” Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Ex-press, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989)) (alteration marks omitted); see also State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S. Ct. 275, 139 L. Ed. 2d 199 (1997). Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not violate the Second Amendment.
The Fourteenth Amendment similarly provides no relief for Appellant. “Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if ‘rationally related to a legitimate state interest.’” Beatie v. City of New York, 123 F.3d 707, 711 (2d Cir. 1997) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)). We will uphold legislation if we can identify “some reasonably conceivable state of facts that could provide a rational basis for the legislative action. In other words, to escape invalidation by being declared irrational, the legislation under scrutiny merely must find some footing in the realities of the subject addressed by the law.” Id. at 712 (internal quotation marks and citations omitted).
The legislative history of section 265.00 makes plain that the ban on possession of nunchakus imposed by section 265.01(1) is supported by a rational basis. 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 Gover-nor (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 pri-marily as a weapon and has no purpose other than to maim or, in some instances, kill.” See N.Y. Penal Law § 265.00, practice commentary, definitions (“Chuka stick”) (quoting Letter of Assemblyman Richard C. Ross to the Counsel to the Governor (1974)).
Appellant does not dispute that nunchakus can be highly dangerous weapons. Rather, his principal argument is that section 265.01(1) prevents martial artists from using nunchakus as part of a training program. But the fact that nunchakus might be used as part of a martial-arts training program cannot alter our analysis. Where, as here, a statute neither interferes with a fundamental right nor singles out a suspect classification, “we will invalidate [that statute] on substantive due process grounds only when a plaintiff can demonstrate that there is no rational relationship [*60] between the legislation and a legitimate legislative purpose.” Beatie, 123 F.3d at 711. Appellant has not carried this burden. Consequently, in light of the legislature’s view of the danger posed by nunchakus, we find that the prohibition against the possession of nunchakus created by N.Y. Penal Law § 265.01(1) is supported by a rational basis.
We have considered Appellant’s remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED. Appellant’s pending motions to strike defendant Kathleen Rice’s brief and material in her July 28, 2008 Rule 28(j) letter are hereby DENIED.
Where do you stand on that question,Floyd? Hugo Black,I believe,thought that the 14th Amendment applied the entire Bill of Rights to the states,but the SC never accepted that position…Hurtado v.California,for instance,denies a defendant in state court the right to a Grand Jury indictment.
I think that the Bill of Rights — at least the individual rights should be are federal rights and that the 9th Amendment means what it says. The Second Amendment applies only to the federal government. If States want to outright ban weapons then so be it — it’s up to the People to protect their own rights through the political process. I have an extremely old school view of States’ rights. I think the 14th Amendment Privileges and Immunities clause should be resurrected from its gutting in The Slaughterhouse Cases. The reliance on The Due Process Clause of the 14th A. has resulted in all sorts of Court shenanigans. So has Equal Protection, but at least that is a relatively easy clause to interpret — the affirmative action cases are explicit abominations and easily identifiable by the language of the Constitution itself. Hurtado… I don’t think there’s anything inherently morally superior about grand jury vs. preliminary hearing vs. prosecutorial discretion — so long as the people of California have the say as to how they want to dispense justice within the limits of provided by the 14th A., federalism, and the State Constitution. Again… the question is — who gets to decide? By even deciding Hurtado in the first place SCOTUS assumes a power I believe it should not have.
The Due Process incorporation cases are more subtle — a result of judicial sophistry. I always found it ironic that the recovering Klansman Hugo Black was for a total federal power grab. I refer back to my Eric Holder post and the zealotry of the newly reformed. Bottom line: who knows better the society we want to live in: Washington DC or Sacramento (or insert your state capital here) and ultimately “me” as I choose my course by voting for my state and local officials? I think the federal gov’t should be somewhat strong – especially in foreign affairs and in interstate commerce — just that the Interstate Commerce Clause should be narrowly interpreted.
It seems to me that the Constitution would overshadow any state law with which there is a conflict. Also, if memory serves, have there not been at least 39 (maybe 69, not positive) times the SCOTUS has heard 2nd Amendment cases and ruled everytime for the 2nd? Remember the states ratified the Constitution and it’s Amendments. In other words, they signed off on being in agreement with it’s directives.
The 2nd Amendment is also greatly misunderstood by most of the left, at least if their arguments against are any indicator. The Amendment does not bestow said right to keep and bear arms. The right to protection of one’s family, self, and property are inherent in the entire Constitution, being considered to be a God-given right. It does, however, state that right “shall not be infringed.” Every gun law on the books anywhere after the writing of the 2nd Amendment is an infringement of the right.
Boiling it down to the very simplist understanding of it, I agree with Ted Nugent when he says, “The 2nd Amendment is my ‘right to carry permit.’”
Correction,Fritz…any state Constitution can expand on the Bill of Rights,but never go under its protections.The Bill of Rights in the US Constitution are the line in the sand
I will defer to Floyd,but I will say this about Hugo Black in the twilight of his life…he was very disturbed about the artificial rights being dreamed up by the Warren Court.He believed that the Bill Of Rights applied to every person in the USA:not one word more,not word less.The “rights of privacy” are in the 3rd and 4th Amendments to the Constitution…nothing more,nothing less.The disaster was Griswold v. Connecticut,wherein the SCOTUS declared a state law barring the mailing of contraceptives unconstitutional
Black dissented.As I recall,he asked if this was a stupid law.Of course it is,he said,but that is not the point.The question was if it violated the Constitution,which it clearly did not,there being no generalized right to privacy.Griswold did create that,and led us to Roe v. Wade
Scott… I was perhaps too harsh on Black. I think he was on the right side vs. Frankfurter, et al. Total incorporation allows for less shenanigans than selective and he would argue he was for States rights, but that the federal court should broadly apply the U.S. Constitution over states. I find that a bit ironic. I think States should have far more say than they do. CT and Mass. had state religions well into the 19th century until they — correctly in my view — disestablished them under their own volition as opposed to judicial fiat or federal coercion. If New York wants to limit press freedom then they should be allowed to do so. I doubt the people of New York would allow such oppression and indeed the Constitution of New York would not allow that — so why do I need a redundant super-government to tell me that when I have a perfectly good state and local body politic to protect my right?
I believe the federal government can regulate broadly (though not as broadly as they do) Interstate Commerce and shoul dbe strong in foreign policy and national currency, etc. I’m fairly old school state’s rights — I think they should be different from each other (other than geography) as opposed to a one-size fits all Americans. I may not like California’s recalls and Props, but it works (sort of) and in any case, it falls within the legitimate forms of republican gov’ts mandated by the Framers. I trust the people to institute forms of government that would be distinctly local, but would fall within “American” democracy/republicanism.
I think Privileges and Immunities is also a better way to do so because it conforms with the concept as opposed to the very fuzzy Due Process (which on its face deals with procedure and not substance). There are some big questions obviously in the Constitution, but the document is not that difficult to interpret — unless you’re a judge and you want something to do and think you are a “Co-Equal” Branch of government — as opposed to having the balls to get involved in real politics and actually run the country as Congress and the POTUS are supposed to do.
I might just mention that those Bruce Lee videos are incredible.
Aren’t they?
Floyd,no one has ever been able to interpret the 9th Amendment
Whoops — meant 10th Amendment.
Though I think the 9th Amendment is also clear given a straightforward good faith reading. Just because rights aren’t mentioned here doesn’t mean they don’t exist. In other words — if you, as the body politic, want to protect rights or spell out rights in statutes, contracts, etc. then knock yourself out — pursuant to Amendments and explicit limits on such things (like slavery 13th A., etc.)
I never understimate the power of judges to take clear language and turn it into an academic article of run-on sentences and sophistry.
(By the way,folks,Floyd is brilliant…he is going to chew me up…)
Be very afraid, Scott, I hear he swallows instead of spits.
http://portlandbusinesscommunity.com/wp-content/uploads/2009/02/confused-puppy.jpg
That’s the look on my face as I’m reading. I feel smarter having read it, but I don’t think I know anymore than when I started.
The Bill of Rights in the US Constitution was meant as a check on federal power,but the idea that the individual states could offer fewer freedoms is astonishing
Scott…. I don’t think States would offer fewer freedoms. I think States could define “free press” reasonably. That might result in a less free press in some states, but not in New York or in CA for example. The question is — who is best placed to define what free speech is for a locality or a State? Washington D.C. bureaucrat, a federal judge or a locally elected official or state official? (Perhaps free press was not the best example to use). All of this assumes a body politic who take their liberty seriously and vigorously defend their freedoms against a government that is bound to limit liberty if unchecked. It would also assume an executive branch that might check such bad legislation and a judiciary to interpret — reasonably — the law as well.
I believe the U.S. Constitution sets a floor of rights under which the States can’t go. I just don’t think the Bill of Rights are part of that. The 14th Amendment sets that floor — the privileges and immunities of citizenship were clearly designed — and the equal protection and DP clauses — to keep States from limiting those freedoms. Relying on the Court to be the protector is the wrong spot.
“Less freedoms”…. what’s the freedom? The grand jury is but one means to an end — protecting the liberty of individuals. There are other legitimate ways to do that. Politics is where we hash out those means.
Legal BS,Tracy
The Federalist states on pages 295 & 296, Section 44, #2, written by Madison:
“This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding.
The indiscreet zeal of the adversaries to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this, we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor.
In the first place, as these constitutions invest the State legislatures with absolute sovereignty, in all cases not excepted by the existing articles of Confederation, all the authorities contained in the proposed Constitution, so far as they exceed those enumerated in the Confederation, would have been annulled, and the new Congress would have been reduced to the same impotent condition with their predecessors.
In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former would, in such States, have brought into question every power contained in the proposed Constitution.
In the third place, as the constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions, and would consequently be valid in some of the states, at the same time that it would have no effect in others.
In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.”
This being the reason why the states had to ratify the Constitution and the Amendments to same.
Scott… I would add… the fact that the States ratified the Amendments is a very strong argument that the B of Rights is a floor of rights. Again — who interprets and does that mean that all 50 states have to identically protect those rights by the same means. That goes back to Black’s stance — that States can define those rights. I was harder on Black than was warranted.
I’m not being clear I guess (I’m a lawyer, a professor , and a Texan so I am tripley handicapped). I know that the Federal Constitution is Supreme — Article VI and all that. I just think that the Constitution encapsulates broadly applicable general principles (some more specific than other obviously) and that the 10th Amendment means what it says — that the People via (and) the States are the better place to guarantee rights. Madison was in favor of a strong federal government (it is called The Federalist after all…)… Jefferson was not.
I know that the U.S. Constitution sets a foundation, but it also mostly limits the federal government. I think the Bill of Rights are great guidance when interpreting privileges and immunities of the 14th A., etc.
I love our Constitution and I think it is genius…. I just think that a bunch of post-Enlightenment tinkerers, post-Darwinian Progressives and outright authoritarians accompanied by an apathetic populace have allowed the thing to be twisted all out of shape.
“I love our Constitution and I think it is genius…. I just think that a bunch of post-Enlightenment tinkerers, post-Darwinian Progressives and outright authoritarians accompanied by an apathetic populace have allowed the thing to be twisted all out of shape.”
When are you throwing the old hat into the ring? 2010’s a-coming!
Floyd,
If your state had a constitution that, ratified in 1901, had 287 Sections and 799 Amendments, would you want to reform it?
Most of the tax laws, since local governments cannot independently pass tax ordinances, are in the constitution.
Here are two Amendments in the Alabama Constitution:
“Prizes given by any nonprofit organization for the playing of bingo games in Jefferson County shall not exceed the amounts set by local law” (Amendment 600)
“The Madison county commission is hereby authorized with or without charge to provide for the excavating of human graves.” (Amendment 520)
Here it is:
http://www.legislature.state.al.us/Codeofalabama/constitution/1901/constitution1901_toc.htm
Floyd,
Since we are on the topic of Constitutions
If your state had a constitution that, ratified in 1901, had 287 Sections and 799 Amendments, an amendment regarding how much money may be used for bingo in one country, and another amendment regarding the exchumation of bodies in another county, would you redo it?
(I am talking about the Alabama State Constitution)
Okay, I have two comments awaiting moderation.
Interesting constitutional discussion. I enjoyed reading it.
I will limit myself to comment that Bruce Lee was, indeed, an out-of-this-world martial artist. Lots of things have changed in martial arts, but his principles stand (and seem to apply even to ping-pong
). It could be argued that his ground-fighting was limited or non-existent, but even if that were true, he was too fast to ever be taken to the ground–like trying to make a cat land on his back. 
But,Floyd,the Bill of Rights are as much a part of the Constitution as the 3 Articles
I believe that’s why they’re called “Amendments.”
Scott… I realize that, but they were passed by the states to limit the federal government’s ability encroach on individual and state’s rights. Soon after the 11th Amendment recognizing the Sovereign Immunity of States from being haled in to federal court was ratified — specifically overruling the first landmark case by SCOTUS — Chisholm v. Georgia in 1793 in which SCOTUS ordered Georgia to pay a debt dating from the War for Independence. I believe that coming so soon on the heels of the Bill of Rights it shows a real trend to rein in (or keep it reined) the federal government a bit since the original Constitution (pre Bill) is very sparse.
Each State is made up of Americans — as such they value religious liberty, free speech, etc. — ALL the things protected by the U.S. COnstitution — that’s why there’s so much redundancy built in. The basic premise is “Free Speech”. If Georgia wants a more British version of free speech (which isn’t as free as ours) then so be it — I wager the citizens of Georgia would then change the law via their duly elected State Legislature or they’d see an exodus of professionals, etc. who don’t like prior restraints on speech, etc. Why should SCOTUS be able to dictate to ALL 50 States what they can and can’t do? If Utah wants to outlaw nudie bars, for another example, as obscene then Nevada will make more money. The fact is — Washington — the federal government doesn’t trust Americans to govern themselves and so we have to be told to separate Church and State as if any American truly wants to meld the two anymore. I can speak as a Baptist — we are THE group that just about invented separation of Church and State (Roger WIlliams and Rhode Island).
Ah yes, the seperation of church and state. I’ll just about stake my life on this though, that the intent was not seen as how it turned out when the idea was bastardized in 1947, and compounded in recent years past.
Funny you should mention Rhode Island,Floyd…did you read where this ignoramus in the legislature wants to drop “Providence Plantations” from RI’s official name?