Your Right to Bear Nunchucks Is Safe
A federal court has struck down a New York ban inspired by kung fu movies.
A federal court ruled Friday that the state of New York's 44-year-old ban on nunchucks infringes on the Second Amendment right to keep and bear arms.
The ruling is a victory for Jim Maloney, a maritime attorney and adjunct professor at the State University of New York's Maritime College. He's also a martial arts enthusiast, having created his own style of fighting called "Shafan Ha Lavan." Maloney wanted to pass along Shafan Ha Lavan to his twin sons, but was legally prohibited from doing so.
Why? It's all thanks to the state's 1974 ban on nunchucks, which are "integral" to Shafan Ha Lavan, wrote Judge Pamela K. Chen of the U.S. District Court for the Eastern District of New York. Nunchucks, for those who don't know, usually consist of two sticks of wood or other material connected by a chain or rope. They were widely used in Kung Fu movies back in the '70s, particularly by martial arts film star Bruce Lee:
Concerned that young people would try to copy what they saw in the movies, New York lawmakers decided to completely ban nunchucks, or chuka sticks. "As a result of the recent popularity of 'Kung Fu' movies and shows," the District Attorneys Association of the State of New York wrote in a 1974 letter, according to The Washington Post, "various circles of the state's youth are using such weapons. The chuka stick can kill, and is rightly added to the list of weapons prohibited by section 265.00 of the Penal Law." For decades, the possession, manufacture, and transport of nunchucks was banned in the state.
That's where Maloney comes back into the story. In August 2000, police were called to his home because a telephone company worker believed Maloney had pointed a rifle at him. (Maloney claimed in a 2009 blog post that it was really a telescope). Nonetheless, police found Maloney's nunchucks in his home, and he was charged with a misdemeanor. The charges were dismissed in January 2003 after he pleaded guilty to a violation—"not a crime," as his blog post clarifies.
But the fact that nunchucks were banned in the first place irked Maloney. "How could a state simply ban any and all possession of a weapon that had a long and proud history as a martial-arts weapon, with recreational, therapeutic and self-defense utility?" he told Reason in an email. "Not only that, but it can be used in self-defense in a more merciful manner, respectful of human life, far more effectively than any penetrating weapon, like a gun or sword or knife."
In February 2003, motivated by "outrage," Maloney filed a legal complaint against the ban. For years, he had very little luck. Then in 2010, the U.S. Supreme Court ruled in McDonald v. City of Chicago that the Second Amendment applies to state laws restricting the possession and use of weapons. Chen wrote that the Supreme Court remanded Maloney's case back to the U.S. Court of Appeals for the Second Circuit, who remanded it back to the District Court.
Maloney did not seek for the court to rule on the constitutionality of nunchucks in general. Rather, he simply wanted them to agree that New York cannot ban people from using nunchucks in their own homes. Chen pointed out that she could not do this. "To achieve the remedy Plaintiff argues that he is seeking would require the court to write in an exception to the complete ban on nunchaku," she wrote. "This the Court cannot do here," she added, explaining that it's not the court's job to rewrite the law.
Instead, Chen ruled that the ban as a whole is unconstitutional. She applied a two-part standard that asks whether a weapon is "in common use" and whether it's "typically possessed by law-abiding citizens for lawful purposes." Chen dealt with the latter part first. The defendant in the case, Nassau County District Attorney Madeline Singas, "has not met her burden to exclude nunchaku from the ambit of Second Amendment protection,' Chen wrote. "Simply put, Defendant does not contradict the contention that the nunchaku's primary use, which Defendant concedes is as 'a tool from the sphere of martial arts'…is a lawful one." Chen also cited testimony from Maloney and other witnesses in concluding that "the typical possession of nunchaku in this country is for recreational and other lawful purposes."
Not only are they used by law-abiding citizens, but Chen noted "there is virtually no evidence that nunchakus are associated with, or have been used to engage in, criminal conduct since" the ban was implemented. For the most part, nunchucks can't be modified to give them a "special propensity for criminal use."
"In fact," Chen wrote, "its intended use as a weapon for recreational martial arts practice and training appears to greatly outstrip its use in crime."
Chen also concluded that nunchucks are "in common use," citing the fact that nearly 65,000 of them have been sold in the U.S. between 1995 and 2018. She explained:
The Court finds that based on this magnitude of sales—especially given the outright bans on nunchaku (in New York and Massachusetts), the other restrictions placed on nunchaku ownership and use in the states where they may be lawfully possessed, and the apparent incompleteness of Defendant's nunchaku sales data—and the relevant, albeit limited, case comparators, Defendant has failed to establish that nunchaku are not in common use.
Ultimately, Chen said the Constitution protects Maloney's right to possess nunchucks. "The centuries-old history of nunchaku being used as defensive weapons," she wrote, "strongly suggests their possession, like the possession of firearms, is at the core of the Second Amendment." Also protected by the Second Amendment is the right to transport, manufacture, or dispose of nunchucks, she ruled.
In light of Chen's ruling, Maloney says he plans to get back to training "at home for the first time in nearly 20 years." Maloney says he's "had half a dozen pairs of sticks sitting around unstrung for all that time," so his first step will be to restring them.
Regarding the ruling as a whole, Maloney says Chen "displayed true wisdom," which he greatly appreciates.
"I can see from the findings of fact and conclusions of law, and from all that led up to the production of that document," he says, referring to the ruling, "that a huge amount of thought and effort went into refining and rendering the final decision, and it makes me happy to see that our federal courts can and do (albeit not always) 'deliver the goods' in applying the law to protect individual rights."
