Baseball Crank
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January 28, 2009
LAW/POLITICS: Second Circuit: Second Amendment Doesn't Apply To The States Unless The Supreme Court Tells Us Otherwise

Setback for the Constitutional Right To Bear Nunchaku

NunchakuThe United States Court of Appeals for the Second Circuit, the federal appeals court sitting in Manhattan, rejected this morning a legal challenge by an attorney convicted on Long Island of possession of nunchaku, or chuka sticks, who argued that the Second Amendment protects his right to bear these traditional Okinawan weapons.

The court's decision, however, did not address whether the Second Amendment protects a right to have nunchaku in your home, as it instead disposed of the legal challenge on the considerably more significant grounds that the Second Amendment is not "incorporated" as a restriction on state government by the Fourteenth Amendment:

It is settled law... that the Second Amendment applies only to limitations the federal government seeks to impose on th[e individual] right [to keep and bear arms recognized in Heller]. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (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 that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (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 "[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. Express, Inc., 490 U.S. 477, 484 (1989))...Thus, N.Y. Penal Law ss265.00 through 265.02 do not violate the Second Amendment.

I will leave it to the Second Amendment scholars to discuss the proper reading of Presser; suffice it to say that judicial conservatives who argued that the Fourteenth Amendment does not incorporate the whole Bill of Rights into prohibitions against the states lost that fight years ago, and it will be an ironic twist if liberal champions of incorporation (including the new Justice Department) suddenly rediscover skepticism about the doctrine to protect state-level gun controls. Conservatives as well will face the issue of how to square the weight of pro-incorporation precedent with arguments for reconsidering the doctrine and limiting its further expansion. But make no mistake: sooner or later the Supreme Court is going to have to return to the issue, and its decision will have vast impact on whether Heller becomes a limitation on state and local gun controls or remains limited to federal gun control.

It also remains to be seen, given the novelty of the weapon involved, whether the Supreme Court will be interested in taking up this question in this case, if a certiorari petition is filed, and what position Obama's Justice Department will take if one is and it is asked by the Court to weigh in. Stay tuned.

Posted by Baseball Crank at 11:08 AM | Law 2009-14 | Comments (11) | TrackBack (0)

Wow, Crank, you blogged on this case exactly when I was blogging on this case.

Posted by: steve at January 28, 2009 11:48 AM

When guns are outlawed, only the authorities--who have proven time and again they can't be trusted--will have them.

Posted by: Berto at January 28, 2009 1:51 PM

see my commentary on this case at

Posted by: steve at January 28, 2009 1:55 PM

I beg to differ, Berto. As the UK has shown clearly, criminals feel no compunction to disarm in accordance with legal requirements.

Posted by: dave at January 28, 2009 6:23 PM

OK, how about addressing this part of the second amendment then:

I am assuming Crank that you feel that we the people have the untrammeled right to bear arms, up to , and including, say, pistols, rifles, sub machine guns, and the like.

But while everyone argues about the word militia, I haven't heard many arguments about what is meant by arms. Can I have your opinion on:

A. Pistols. A sidearm, and I agree that a single shot pistol was in the 18th century armory.
B. Rifles. Again, flintlocks, which were used for hunting and wars.
C. Swords. Do we let anyone walk around with swords or machetes in hand? Not a joke.

Question: Do we interpret arms as a weapon?

D. Weaponized anthrax?
E. Would Egon, Venkman and Spengler be safe from the law carrying a portable proton accelerator?
F. A missile launcher?

I'm a meat eater, and don't really mind somebody who goes after deer. As long as they give me a piece or two to cook. But really, what weapon is OK, and what isn't?

Posted by: Daryl Rosenblatt at January 28, 2009 8:17 PM

I think that's an open question, Daryl, and I'm not sure I have a strong opinion on where you draw the line (gun rights aren't really my issue) or how you go about ensuring that the drawing of lines can legitimately be done by courts. Clearly, something like an artillery piece would not be protected - in colonial times, the average farmer wouldn't bring a cannon from his house to muster; some central repository would be used, as was done throughout Mass. during the early years of the Revolution. But he might bring a rifle, a pistol, an attachment like a bayonet, a hunting knife, and yes, perhaps, a sword. That doesn't mean the town could place no restrictions on where those could be carried.

Posted by: Crank at January 28, 2009 8:39 PM

So we do agree that there needs to be some form of "arms control." And that the second amendment is not limitless.

Posted by: Daryl Rosenblatt at January 29, 2009 8:44 AM

One way to honestly draw the line is at uncontrolled, indirect fire weapons and explosives. One can argue that they are not 'well-regulated' because they do not fire to a specific point of aim and the user cannot direct them precisely.

Another honest way to draw the line is to use the military as a base, and state that anything functionally equivalent to that which our military will issue to a single soldier; like a pistol, selective fire rifle, .50 caliber rifle, or grenade; is an 'arm'. Anything that requires multiple soldiers, like a crew-served machinegun, a tank, a TOW missile system; all of which require multiple solders to use and maintain, is not.

But these assume honesty in the distinction, and previous gun banners have not used that. My assumption is that as a male between the ages of 18 and 45 that I can be drafted at a moment's notice as the past has demonstrated. It is to the government's benefit to have me trained with exactly what I will be using in the military, on my own dime and time. So why not?

Posted by: luagha at January 29, 2009 5:11 PM

I'll also add that several other Second Amendment incorporation cases are also headed up the chain at the moment, from Chicago, New York, and San Francisco. They have to do with firearms, not nunchaku, though.

Posted by: luagha at January 29, 2009 5:25 PM

I keep waiting for the conservatives to sell an "evolving, nontextual " reading of the 2nd Amendment to protect machine guns and brass knuckles and the like. Whines about judicial activism from the right are selective and result oriented.

Posted by: robert at January 30, 2009 7:39 PM

Unfortunately, politics is the art of the possible, and five out of nine people in black robes are the ones deciding what's possible.

Posted by: luagha at February 10, 2009 4:07 PM
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