Wednesday, July 29, 2009

Today in the Akron Legal News -- Nunchucks!

Today's column in the Legal News takes on the nunchuck colloquy during the Sotomayor hearings. If you missed it, the Second Circuit case regarding Second Amendment incorporation considered a New York State ban on nunchucks.

OK, once more in English. The Bill of Rights as written limits only the power of the national government (thus the "Congress shall make no law" language opening the First Amendment.) That changed after the Civil War and the ratification of the 13th, 14th and 15th Amendments. The 14th, which among other things says that no state can deny life, liberty or property without due process of law, is read as incorporating fundamental rights against the states.

Which is to say, the Due Process Clause doesn't incorporate all of the Bill of Rights. After a certain amount of judicial back and forth (which is virtually impossible to teach coherently to undergrads, thanks very much) the Court worked up a fundamental rights test to determine whether a given right is incorporated. Fundamental rights are those from which all other rights flow, and/or those essential to the concept of ordered liberty. Yes, that's not the most definitive test in the history of American jurisprudence, but it's what we've got.

The newly discovered individual Second Amendment right has yet to be incorporated. Heller v. DC overturned a District of Columbia law which is functionally a Federal law given the special status of the District.

So, back to nunchucks. The 1970s saw a martial arts craze during which nunchucks acquired an inflated reputation as some kind of super weapon. Nunchucks can indeed be effective in hand-to-hand combat, but only in the hands of someone well-schooled in their use. In the column I draw on my own martial arts experience which has taught me little other than how easy it is to ding yourself in the face as you try to learn how to control these things.

Anyway, during the 70s martial arts fad, apparently some gansta types started rocking nunchucks and the New York Assembly responded by banning. The sponsor of the legislation said that they serve no purpose other than to maim or kill. Obviously he never saw this:

Anyway, the New York law was challenged in Maloney v. Cuomo and the Second Circuit held that Heller doesn't apply. In doing so, the court followed a Supreme Court precedent saying that the Second Amendment doesn't apply against the States. My guess is that the precedent will be overturned when an incorporation case comes before the Court, but the Second Circuit's position was that until it is, the precedent controls.

Wingers and Gunnutistanis on the Judiciary Committee tried to make the case that Sotomayor is anti-gun. Which she may or may not be, but in following precedent she was the opposite of the activist judge the Republicans made her out to be.

My point in writing up the nunchucks case is that a) the New York law is foolish and misbegotten and bases on false assumptions about the overwhelming power of nunchucks, but b) the way Heller pegs the Second Amendment right to weapons traditionally used for self-defense makes it hard to argue that the law violates the Second Amendment. We'll see what the Court does, but ruling against the state in Maloney would be an expansion of Heller that could make the right far broader and more unwieldy than Scalia seemed to be bargaining for.

So if you have a chance to pick up the Legal News, that's what you get today. I'll continue to lobby for some online reproduction and continue to occasionally post summaries here.


Colin Morris said...

I tried my bet, I didn't follow all of that. The Bruce Lee video made my day, though.

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