The Constitutional Right to Keep and Bear Nunchucks?


Last month, Brian Doherty wrote about the Second Circuit's ruling in Maloney v. Cuomo, which held that the 2nd Amendment right to keep and bear arms does not apply against the states. Eugene Volokh speculates today on whether the Supreme Court is likely to hear Jim Maloney's appeal, given that he's charged with violating New York's ban on nunchakus, or "nunchucks":

Kirkland & Ellis (which is doing this case pro bono) is a top-notch law firm, with a top-notch Supreme Court practice. My guess is that the Supreme Court would prefer to consider the incorporation question in a case that involves more common facts, and that doesn't raise the additional legal question of whether nunchakus qualify as "arms" for Second Amendment purposes. But it's hard to tell for sure: It's possible for the Justices to use the case to decide the purely legal question of whether the Fourteenth Amendment incorporates the Second Amendment and thus constrains the states to respect an individual right to keep and bear arms. The Justices must be aware that the question is out there in lots of cases.

Whole thing here. My case for why state governments should respect the 2nd Amendment here. Brian Doherty's definitive Gun Control on Trial here.

NEXT: No, I'm Not Using Slang. It Really Is Tea.

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  1. To state the obvious, if states are free to disregard the 2nd Amendment then they, by extension, should be free to disregard the 4th amendment (or the first) or any other amendment.

  2. My CCDW permit covers nunchakus.

    I guess I could openly carry them too, but not sure.

  3. Totally NOT radical, dude!

  4. Actually, according to the text, the only amendment which doesn’t apply to the states is the first amendment. “Congress shall make no law…”

  5. There is zero way they could argue that incorporation doesn’t apply to the 2nd Amendment.

  6. There is zero way they could argue that incorporation doesn’t apply to the 2nd Amendment.

    You are absolutely wrong on that point. For instance they could argue it by sticking their fingers in their ears and going la, la, la, la, la, la, la, doesn’t apply, la, la, la, la, doesn’t apply la, la, la, la,

  7. How the fuck did nunchucks get banned in the first place? Was there a moral panic about ninjas during 80’s?

  8. Not to give them any ideas, but aren’t baseball bats and chainsaws along with most things you probably have in your garage at least as dangerous as two sticks chained together?

    And to cover my ass from the coming “You don’t know how deadly a nanchaku master is!” comment, I’d like to say that YOU don’t know how deadly a chainsaw-throwing master is! (Think “American Psycho”)

    The precedent this sets is ridiculous. They can just make shit illegal for the hell of it.

  9. Maybe the SCOTUS should just issue a list of rights we have left. It would be easier than trying to guess.

  10. I bet he gets all kinds of girls. Because girls like a guy with skills.

    Like nunchuck skills, or computer hacking skills.

  11. Since Justice Scalia ELL-YOU-VEE-ESS Bruce Lee, I think nunchucks are a go.*

    *When he enters the Court, they hit a gong and the clerk says “Enter … the Dragon!” Get the picture?

  12. List of Rights You Have Left

  13. How the fuck did nunchucks get banned in the first place? Was there a moral panic about ninjas during 80’s?

    We had nunchucks, shuriken, butterfly knives, ultra-realistic cap guns, M-80s, etc. in the 80s. The banning started in earnest in the 90’s when the boomers really started dominating public policy.

  14. The Court has always been vague about the reach of the incorporation doctrine, undoubtedly to give itself more leeway in the future. Of course, the Court made up the entire doctrine out of thin air around 1890, so I suppose it can mean anything the Court wants it to mean.

    As to the textualist argument about the reach of the Bill of Rights, that’s a very interesting approach that Paul has, but it unfortunately goes against 200 years of Supreme Court jurisprudence, as well as the overall structure/purpose of the Constitution as envisioned by the Framers.

  15. Why does Reason not sell “The Right to Bear Nunchucks” T shirts?

  16. When Nunchucks are outlawed, only outlaws will chuck nuns.

  17. The bearing of nunchuks should not only be legal, it should be mandatory.

  18. Nunchucks should appeal to gun control lobbyists: they have no margin for error. If you do not know how to use them properly, you WILL injure yourself.

  19. Fuck let’s just go all out and ban practicing of all Martial Arts too. It worked for the Japanese on Okinawa. They never were able to develop any sophisticated means of self defense.

    Oh wait…


  21. Urkobold has just substantially raised my opinion of nuns.


  22. The delicious irony is that nunchucks were invented because of sword control laws.

  23. Probably a bad case to test the incorporation issue.

    I believe the guy did his appeal to the Second Circuit pro se, and didn’t raise the issue below.


  25. Look, a lot of boys had posters of a shirtless chinaman with an AMAZING body gripping a pair of sleek black laquered cylinders hanging on their wall…

    what was my point?

  26. That UR GHEY.

  27. @robc

    If you want an english beer that makes better use of hops, try something from St Peter’s. They have some supermarket distribution in the UK now, and have some pubs, including one in London (The Jerusalem Tavern, Farringdon). Their best bitter is pretty nice.

  28. The delicious irony is that nunchucks were invented because of sword control laws.

    I was going to say something about that. I mean banning nunchaku is like banning pitchforks or garden weasels. It’s just absurd.

    Not that ever stopped anyone.

  29. “The precedent this sets is ridiculous. They can just make shit illegal for the hell of it.”

    No shit, Sherlock.

  30. They banned swords in Scotland. I wonder if nunchucks slid under that ban?

  31. Look, Captain, I also had posters of Peter Frampton and Jimmy Page, shirts open, curled locks flying. I also had issues of Circus and Creem with Paul Stanley and Freddie Mercury on the cover. It doesn’t make me gay.

    Now painting nipples on my GI Joes, on the other hand…

  32. Jeff P,

    What about Rob Lowe? That’s the true test of your obvious gayness. I mean, alleged.

  33. PL: Nunchucks and kilts are a dangerous combination…

  34. Hello, Jeff P! Come here often?

    Kiss Kiss!

  35. We played with numchucks back in junior high (circa 1969). Good times.

  36. So are swords and kilts. One must simply be an expert at all weapons before wearing the kilt. Which is what makes Scotsmen so difficult to slay.

  37. C&P

    Slingshots, slingshot ammo, and slingshot supplies, cannot be shipped to the following states, counties or cities:

    Delaware: Dover & Wilmington
    Florida: St. Augustine
    Illinois: Evergreen Park
    New Jersey
    New York: Only wrist-braced slingshots are illegal.
    Minnesota: Duluth
    Rhode Island
    South Carolina: Charleston
    Tennessee: Knoxville & Johnson City
    Utah: Salt Lake County
    Virginia: Falls Church

  38. Excellent! New Mexico, Arizona, and Nevada are all slingshot friendly!

  39. I wonder why St. Augustine banned them? Were the B&B’s threatened? You’d think a town with a big stone fort could handle a few slingshots.

  40. How the fuck did nunchucks get banned in the first place? Was there a moral panic about ninjas during 80’s?

    Yeah, don’t you remember the 80’s? There was a lot of knife and general martial arts weapons banning going on in the late 80’s and early 90’s.

  41. FYI, most state and local knife laws are barely enforced. If you live on the West Coast, walk into any fine Korean purveyor of tabacco products or convenience store fare and you can buy any number of switch blades and other knives which are easily illegal.

    in fact, some knife laws are so general, half the stuff they sell at Home Depot is techically illegal.

    “Any knife with thumb assist, or can be open by force of gravity blah blah blah”.

  42. Yeah, don’t you remember the 80’s? There was a lot of knife and general martial arts weapons banning going on in the late 80’s and early 90’s.

    Thank god that did nothing to prevent chinatown shop owners from selling shuriken to 5th graders.

  43. Other reactionary moral outrages of the 80s include the loss of family values, the creeping encroachment of porn into the mainstream, “wilding,” the cocaine epidemic, poisoned halloween candy, poisoned Tylenol, and homelessness.

  44. Nunchukas aren’t very effective weapons, just like salvia isn’t a very effective drug, but they both make good whipping boys for scare-mongering politicians.

  45. From

    Nothing is more likely to (justly) infuriate a liberal than an assertion of the specious theory, which in recent years has gained support among conservatives (e.g., recently defeated Senator Rick Santorum of Pennsylvania), that the “original intent” of the First Amendment’s no-establishment clause was to preserve the right of the state governments to establish their own churches. “Congress shall make no law respecting an establishment of religion” — so that the state legislatures can. Along those lines, we may conclude that the “intent” of the free-exercise clause was to prevent federal interference in the state burning of heretics. The purpose of the Eighth Amendment? No doubt to safeguard the right of the state governments to erect their own torture chambers. And of course, the purpose of the Second Amendment is to allow those governments to form their own armies and even disarm the people if they so decide — a point where our liberal finds himself in perverse agreement with a hated premise.

    Let there be no doubt: The Bill of Rights is not a charter of the rights of state churches, state armies, and state torture chambers — and none of its ratification proponents ever championed it as such. It is a charter of the rights of American citizens — against the power of the federal government. The weak reed of this “states’ rights” theory is the fact that the Constitution did not secure these rights for citizens against the power of the state governments, a defect that Madison recognized and tried to remedy with an amendment (which he thought the “most valuable”) affirming “No state shall violate the equal rights of conscience” and other liberties. Sadly, it was never adopted, and incorporation — the application of the Bill of Rights to the state governments — was not achieved until the Fourteenth Amendment, whose “privileges or immunities” clause was stated by its author, Congressman John Bingham of Ohio, to effect precisely that end. (See Michael Kent Curtis’ No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights.)

    The question now: Who are the greater knaves of our time — liberals who embrace incorporation except for the Second Amendment or conservatives who reject incorporation, except for the Second Amendment?


  46. “What about Rob Lowe? That’s the true test of your obvious gayness. I mean, alleged.” fan, right?

  47. “Other reactionary moral outrages ”

    Don’t forget D&D. And dirty rock lyrics (as mentioned earlier today with Tipper’s group)

  48. Nunchukas aren’t very effective weapons

    yeah, the martial arts classes I took in college included both their use and the bo staff) but the former is more of a defensive(i.e. blocking type) weapon than anything.

  49. My lines in the sand revolve mostly around guns. Confiscation attempts being the big one, but the Supreme Court saying the 2nd Amendment doesn’t apply to the states would probably also be a trigger.

    Then again, all this Obama communism is getting me closer to ‘woo-hoo’ day.

  50. I wonder why St. Augustine banned them?

    Imported atavistic decadence from Asian cults. Providing occasions for temptation to the deadly sin of wrath expressed as murder. Diverting the mind from God.

    What’s not to ban, Boychuk?

  51. All kinds of silly weapons are banned from carry or even ownership in many places. Switchblades, butterfly knives are a couple, and are even heavily regulated at the federal level. Blow dart guns are even banned around here.

  52. John-David,

    That’s correct. I saw the bit on Lost Boys‘ gayness. And they were right–Rob Lowe posters and heterosexual males do not mix.

    St. Augustine,

    Not you, Your Saintliness. The town in Florida.

    Say, I trained in Shodokan. Does that mean I could be banned, too?

  53. If we give up our nunchaku, what will we use to beat the crap out of gangs that form circles around us and attack us one at a time, while speaking with bad lip synch?


  54. not a news story just a forum post I found looking for info on Illinois absurd airgun laws.
    Internet cops threaten 13y/o aspiring airgun owner with a felony jacket.

    When do we start the revolution?

  55. When do we start the revolution?

    When they pry the Revolution from my cold, dead grip.

  56. When they pry the Revolution from my cold, dead grip.

    The names some guys come up with for their penises.

    *just me backwards. I left that wide open for exploitation. Damn if I’m giving it to you guys.

  57. My favorite nonsensical weapons ban comes from the time I tried to buy my father a bb gun for Father’s day so that he could more effectively control (or at least irritate) the local squirrel population.

    I went to the firearms counter at a sporting goods store and was informed that the sale of air rifles was banned in Plymouth Meeting, PA. Meanwhile, I was free to purchase shotguns, rifles, handguns, etc. However, less than lethal air rifles were banned. WTF?

    So may dad is now killing squirrels with a .30-06.

  58. When do we start the revolution?

    Right after Reloaded, but don’t get your hopes up.

  59. The Second Amendment says what it means and means what it says:

    “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.”

    The Amendment doesn’t specify WHO may keep and bear arms, WHEN, WHERE or HOW they may do so, nor does it specify WHAT types of arms they may keep and bear. Period. So, yes, nunchucks, as well as all other weapons are constitutionally covered as “arms.” For those of you who would argue differently, remember there is that pesky little second clause, which says:

    “…the right of the People to keep and bear arms shall not be infringed.”

    That part means what it says, too.

  60. SCOTUS: Nun shall chuck.

  61. They have outlawed the tools of maritial arts?

  62. The part of the Second Amendment that has caused problems in the 20th and 21st centuries is the use of the term “well regulated.”

    In Madison’s time it meant “sufficiently stocked (or capable).” People are reading and interpreting it as if it were written last week.

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