Thursday, December 27, 2018

You have the right to own a chuka stick

A federal judge in New York has ruled that state law that prohibits ownership of nunchaku, or chuka sticks, violates the Second Amendment's right to bear arms.

The case is Maloney v. Singas, decided by Eastern District Judge Chen on December 14. This case has been kicking around for 15 years, having twice reached the Second Circuit, which first ruled against the plaintiff but later allowed the lawsuit to proceed after the Supreme Court in 2008 held the Second Amendment protects the individual right to gun ownership. Following this ruling, I can predict the case will reach the Second Circuit a third time.

The chuka stick is a martial arts instrument used recreationally in martial arts training, practice and performance. It is primarily used in self-defense as a weapon. At the evidentiary hearing on the statute's constitutionality, the court learned that nearly 65,000 chuka sticks were sold in the United States between 1995 and 2018, and that over a two-year period recently, Nassau County (the defendant in this case) prosecuted only five people for crimes involving the nunchaku.

The district court applies the constitutional analysis that the Supreme Court devised in the Heller case from 2008, which says the Second Amendment only protects weapons that are "in common use" and are "typically possessed by law-abiding citizens for lawful purposes." The court finds there is a rebuttable presumption that these weapons are protected under the Second Amendment. A lot of these things are floating around, and few people are arrested for using them criminally.

In reviewing the constitutionality of statutes under the Second Amendment, courts apply "intermediate scrutiny," which requires the government to advance a good reason for the restriction (as opposed to "strict scrutiny" which requires a compelling reason). Under this test, the restriction must be substantially related to an important governmental interest. While the court recognizes that protecting the community from crime is an important interest, plaintiff wins the case because the restriction against chuka sticks is not substantially related to that objective, as there is a dearth of nunchaku-related crime and the state's ban against these weapons is all-encompassing. "Defendant has offered virtually no evidence supporting a public safety rationale for a total ban (as opposed to lesser restrictions" on the possession of nunchaku in New York State.

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