Second Amendment

Nunchaku Are Protected by the Second Amendment

So a federal district court held Friday.

|The Volokh Conspiracy |

Friday, New York federal district court Judge Pamela Chen decided—after 15 years of litigation—that the New York state total ban on nunchaku (a martial arts weapon) violated the Second Amendment. (The case is Maloney v. Singas.) ther courts had likewise applied the Second Amendment, and state constitutional rights to bear arms, to other non-firearms weapons, such as stun guns, batons, and knives. But nunchaku seemed rather more unusual, which raised the question whether they are excluded by the Heller language about the Second Amendment protecting weapons that are "in common use."

No, there is no such exclusion here, ruled the court, relying largely on Heller and a Second Circuit decision applying Heller:

[A.] There is a rebuttable presumption that " 'the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,' not just to a small subset."…. "The Second Amendment protects only the 'sorts of weapons' that are (1) 'in common use' and (2) 'typically possessed by law-abiding citizens for lawful purposes.'" "Heller … endorsed the 'historical tradition of prohibiting the carrying of dangerous and unusual weapons.'" … Furthermore, it is the government that bears the burden of rebutting the "prima facie presumption of Second Amendment protection" that extends to all bearable arms.

While the logical implication of the two criteria identified in Heller—"common use" and "typical possession by law-abiding citizens for lawful purposes"—is that the government need only disprove the existence of one or the other criterion to exempt the challenged law from Second Amendment coverage, the Court has concluded that the "common use" factor is ultimately irrelevant and that the government must show that, at a minimum, nunchakus are not typically possessed by law-abiding citizens for lawful purposes. See Caetano v. Massachusetts (stating that the test for whether a weapon falls within the scope of the Second Amendment is "a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual.") (Alito, J., concurring)…

Here, "the parties do not dispute that nunchakus constitute a 'bearable arm,'" and so the rebuttable presumption that nunchakus are protected by the Second Amendment applies. …

[B.] The next step … that the Court must determine whether the nunchaku ban impinges upon conduct protected by the Second Amendment, i.e., whether Defendant has proved, by clear and convincing evidence, that nunchakus are not typically possessed by law-abiding citizens for lawful purposes. Admittedly, there is no defined analytical standard for what constitutes "typical possession by law-abiding citizens for lawful purposes." However, … the Second Circuit [has] indicated that to determine a weapon's "typical possession," the Court is "require[d] … to look into both broad patterns of use and the subjective motives of [the weapon's] owners."

Considering the scant evidence presented, the Court finds that Defendant has not met her burden to exclude nunchaku from the ambit of Second Amendment protection. 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….

Furthermore, although the criminality associated with a weapon is not the only relevant inquiry, here, there is virtually no evidence that nunchakus are associated with, or have been used to engage in, criminal conduct since Section 265.01(1) was amended to include nunchaku over forty years ago. The only evidence presented by Defendant as to the unlawful use of nunchaku are five nunchaku prosecutions, two cases of assault and three cases of possession, between December 14, 2014 and January 11, 2017 in Nassau County.

Moreover, Defendant presents no national data on the unlawful use of nunchaku. Given Defendant's concession that the nunchaku is primarily a tool of martial arts, pointing to these isolated incidents falls far short of Defendant's burden of establishing that the nunchaku's typical use is an unlawful one. [Footnote moved: [Footnote: To allay its concerns about completeness, the Court, on its own, has identified 52 nunchaku-related incidents in the United States since 1974, with the vast majority occurring since 2011. They are listed chronologically, along with the four newspaper articles cited by Defendant in her summary judgment briefing, in an appendix to this opinion. Even if Defendant had offered evidence of these 56 incidents at trial, they do not constitute clear and convincing evidence, or a preponderance of evidence, that nunchakus are not commonly used by law-abiding citizens for lawful purposes.]

Moreover, unlike a sawed-off shotgun, gun without a serial number, or pipe bomb—weapons that courts have found to be outside the ambit of Second Amendment protection—nunchaku have no special propensity for unlawful use. In fact, its intended use as a weapon for recreational martial arts practice and training appears to greatly outstrip its use in crime.

The Court rejects Defendant's argument that the Court's "typical use" analysis should be limited to whether the nunchaku is typically used for home self-defense—and should not consider the nunchaku's use in martial arts—because Plaintiff's request for relief is limited to this use. Defendant cites no caselaw to support such a limited understanding of "typical use." See Friedman, 136 S. Ct. at 449 (discussing "self-defense and target shooting" in determining a weapon's "typical use") (Thomas, J., dissenting from denial of certiorari); NYSRPA, 804 F.3d at 256 (considering "lawful pursuits like self-defense and hunting"); Fyock, 779 F.3d at 998 (examining "marketing materials and sales statistics" to determine the "lawful purposes" for which large-capacity magazines are possessed). Defendant's reliance on Heller for this argument is also unavailing, since nowhere in Heller does the Supreme Court state that Second Amendment protection only extends to "bearable arms" that are typically used for home defense, Heller II, 670 F.3d at 1260 ("[T]he Court [in Heller I] also said the Second Amendment protects the right to keep and bear arms for other 'lawful purposes,' such as hunting, but self-defense is the 'core lawful purpose' protected.").

The Court also rejects Defendant's argument that the nunchaku ban should be upheld because "the dangerous potential of nunchucks is almost universally recognized." "If Heller tells us anything, it is that [weapons] cannot be categorically prohibited just because they are dangerous," since the "relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes." Caetano, 136 S. Ct. at 1031 (Alito, J., concurring). [Footnote: Inexplicably, Defendant states that "[o]bviously, spring-guns and carrying/using mace or stun guns are not constitutionally protected activities" because they are dangerous. This statement is plainly incorrect, at least as to stun guns and mace. In Caetano, Justice Alito explicitly argued that stun guns are constitutionally protected weapons. See also People v. Yanna, 297 Mich. App. 137 (2012) (striking down Michigan's complete prohibition on Tasers and stun guns). Mace is, in fact, legal in all 50 states, and the Court sees no reason why mace would not also be constitutionally protected.]

Therefore, because Defendant has failed to demonstrate, by clear and convincing evidence, or even by a preponderance, that nunchakus are not typically used by law-abiding citizens for lawful purposes, she has failed to rebut the presumption that the possession and use of nunchaku is within the scope of the Second Amendment's protections.

[C.] Although the Court has concluded that, under the standard established in Heller, a bearable arm is entitled to Second Amendment protection where the government fails to show that the weapon's typical use is not a lawful one, out of an abundance of caution, the Court also finds that Defendant has failed to show, by clear and convincing evidence, that nunchakus are not in common use. Based on the evidence introduced at trial, at least 64,890 metal and wood nunchaku were sold on the retail market in the United States between 1995 and 2018. Courts have not set a numerical floor for determining what constitutes "common use." In his concurrence in Caetano, Justice Alito found that stun guns were in "common use" because "hundreds of thousands of Tasers and stun guns have been sold to private citizens, who it appears may lawfully possess them in 45 States." Here, at least 64,890 nunchakus have been sold over the past 23 years to private citizens, who may lawfully possess them in 48 states. 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.

[Footnote: The Court has only identified one case in which a court found that a weapon was not in common use. In Hollis v. Lynch, the Fifth Circuit found that the existence of 175,977 civilian-owned machine guns did not rise to the level of "common use" for three reasons: (1) the number of machine guns was "below [the] more than 8 million AR- and AK-platform semi-automatic rifles manufactured in or imported into the United States [that] the Fourth Circuit held was sufficient for a showing of common use [in Kolbe v. Hogan, 849 F.3d 114, 174 (4th Cir. 2017)]"; (2) unlike the stun guns in Caetano, which Justice Alito found "may be lawfully possessed in 45 states[,] … 34 states and the District of Columbia prohibit possessing machineguns"; and (3) that machine guns represent a "quite low" percentage of all firearms produced or manufactured for the domestic civilian market. Notably, however, the Fifth Circuit did not rely solely on its finding that civilian-owned machine guns were not in common use to determine that the Second Amendment was not implicated; rather, the Fifth Circuit also analyzed the "lawful purpose" prong. Furthermore, as a point of comparison, the number of jurisdictions in which nunchaku are legal, as discussed supra, is 48 states (versus 16 states in Hollis and 45 states in Caetano). In addition, even though the Court does not credit Pellitteri's testimony with respect to the number of nunchakus sold in the United States, the Court has considered his testimony that "nunchucks seem to be the most popular martial arts weapon" with respect to the "in common use" analysis.]

Thus, even assuming that Defendant need only prove that nunchakus are not in common use to exempt them from Second Amendment coverage, she has failed to do so….

[D.] Having concluded that Section 265.01(1), as applied to nunchaku, impinges upon Plaintiff's Second Amendment rights, the Court must next determine and apply the appropriate level of scrutiny. Although "Heller did not specify the precise level of scrutiny applicable to [weapons] regulations," id. at 258, it is clear that, at a minimum, intermediate scrutiny applies. Because the blanket ban imposed by Section 265.01(1) as applied to nunchaku easily fails constitutional muster under intermediate scrutiny, the Court need not decide whether intermediate or strict scrutiny should apply.

The test for determining the proper level of constitutional scrutiny with respect to a Second Amendment challenge has two factors: "(1) how close the law comes to the core of the Second Amendment right and (2) the severity of the law's burden on the right." Given that Section 265.01(1) completely bans the possession and use of nunchaku in New York State, the determinative issue is whether possession and use of nunchaku is an activity that is at the core of the Second Amendment. The centuries-old history of nunchaku being used as defensive weapons strongly suggests their possession, like the possession of firearms, is at the core of the Second Amendment. Nonetheless, even as recreational items, nunchaku may still be at the core of the Second Amendment's protections. The Court, therefore, finds that at least intermediate scrutiny applies to Section 265.01(1)'s ban on nunchaku.

"Though 'intermediate scrutiny' may have different connotations in different contexts, here the key question is whether the statute[ ] at issue [is] 'substantially related to the achievement of an important governmental interest.'" "The legitimate and compelling state interest in protecting the community from crime cannot be doubted." Therefore, the Court "need only inquire … whether the challenged laws are 'substantially related' to the achievement of that governmental interest." Given the dearth of nunchaku-related crime, discussed [above], and the all-encompassing nature of the New York nunchaku ban, it cannot be said that the "fit between the challenged regulation" and the state interest is "substantial." … "[O]n intermediate scrutiny review, the state cannot get away with shoddy data or reasoning." … "To survive intermediate scrutiny, the defendant[ ] must show 'reasonable inferences based on substantial evidence' that the statute[ ] [is] substantially related to the governmental interest."

With respect to the nunchaku ban, Defendant has plainly failed to do so…. Defendant has offered virtually no evidence supporting a public safety rationale for a total ban (as opposed to lesser restrictions) on the possession and use of nunchaku in New York State.

Accordingly, the Court finds that Section 265.01(1), as applied to nunchaku, does not survive intermediate scrutiny and must be invalidated as unconstitutional. However, this ruling merely reflects Defendant's failure to present sufficient evidence and argument to support Section 265.01(1)'s constitutionality as applied to nunchaku and "do[es] not foreclose the possibility that [the government] could in the future present evidence to support such a prohibition[ ]," or some lesser restriction, on the possession and/or use of nunchaku in New York.

[E.] In light of the Court's finding that Section 265.01(1) as applied to nunchaku is unconstitutional, the Court also invalidates the portions of N.Y. Penal Law § 265.10 … that apply to nunchaku [and that ban manufacturing, shipping, or disposing of nunchaku]….

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  1. Yeah, Michelangelo is no longer an outlaw.

    1. Unclear. Do turtles (or dead painters) have 2nd amendment rights in NY?

      1. Artists vs TMNT. Epic Rap Battles of History: https://www.youtube.com/watch?v=6HZ5V9rT96M

        1. Best line:

          Donatello (turtle) to Donatello (Renaissance artist): Uh, Dona-tell me who you are again dude // Cause I don’t Gattamelata clue what you do.

          1. I like the one about “your NES” game because I am old enough to remember renting that thing and having a bitch of time playing it.

            I am a huge fan of Epic Rap Battles of History. They have only 1-2 flops. Funny stuff!

  2. Hmmm– Poor Hispanic workers are constantly being jailed because their utility knives count as “gravity knives”, but Judge Chen decides that nun-chucks are protected?

    1. Knife Rights has been been pursuing their lawsuit on gravity knives for 8 years; they’ve got another 7 to go before they catch up with this case.

      The 2nd is as bad, maybe even worse, for gun rights than the 9th.

      1. Illinois recently ended it’s ban on switchblades. Now you can purchase and possess them if you have a valid Illinois Firearm Owners Identification Card. Which effectively prohibits felons from having them.

    2. Citations? For both the “constantly being jailed” part and to the ethnicity part.

      1. Here is an outdated article about it, but in short, 2nd Amendment guys and BLM types are in bed together, in that knife laws are used as a pretext to stop and frisk, and then the law is, let’s put it mildly, not consistently enforced.

        http://gothamist.com/2016/06/1…..rm_law.php

    3. Do you know how lawsuits work?

  3. It’s really outrageous that the right to stick one’s schlong into another man’s tuchis gets more protection than the right to keep and bear arms.

    1. Cowardly, closeted, AND illiterate? Triple threat!

      1. Having trouble reading?

        1. Nope, I hit all the key points.

    2. Guns at least have the micro-rationale that they can affect third parties. Butt sex is entirely up to the two parties involved.

      Your homophobia has been manifest for ages. Perhaps you have something going on …

      1. We spend $20 billion per year of taxpayer money treating HIV, of which 75% of cases result from butt sex between men. I’d say $15 billion in taxes is enough of an effect on third parties that we have the right to impose common sense restrictions on it.

        1. Until you do your part and stop having butt sex with other men, you’re just a hypocrite.

        2. I bet the fabled gun violence costs far more. I bet straight sex has far more costs. I bet there are a thousand activities which cost more.

          If cost alone can override the constitution in your mind, then you are nothing but a statist. Your sense of liberty, and your reading comprehension of the 9th and 10th amendments, are wildly out of calibration.

          1. The Constitution does not grant a right to have butt sex, and no one can reasonably argue that it does.

            1. The Constitution does not grant a right to keep and bear arms, either. As is clear from the text of the Second Amendment, the right precedes the Constitution.

            2. Man, fuck you and you’re lack of respect for the ninth amendment.

            3. Man, fuck you and you’re lack of respect for the ninth amendment.

        3. By that logic, though, we should penalize people who don’t exercise and eat too much sugar, as diabetes costs a sh*t-ton more to deal with.

          Look, I get it, the fetish the left has for gay sex is over the top, but that horse has left the barn. Draw a new line in the sand.

          1. If we do that, we just keep retreating. The left’s new deviance will become the new normal. At some point we have to fight back.

            1. You are correct that the danger is that surrender conservatives will always say that they will fight on that next important point, and not the one currently under siege, and that it happens time and again. This is why the primary is more important the the general election at times.

              But you’re lost in the forest if you think rights and privileges already granted will be revoked. That’s only ever happened once in US history, when Reconstruction ended. There is not, and never will be (absent a black swan event) public opinion to support reversing gay marriage, or women voting, etc.

              1. “it happens time and again”

                Yes, its happening with “transgendered” now. You see conservatives surrendering already.

                No perversion can be stopped it seems.

                1. When to give up on a cultural war fight item? I can’t say, it is different in each case. I would love if someone could outline a few general guidelines on the matter.

                  But what I can say, definitively, is that ARWP’s bitching about women getting the vote and gay marriage is waste of time and counterproductive. In the first case, if you really wanted to drive a stake through the heart of feminism, you’d defund women’s studies departments. It would linger on in a sort of zombie state after that, mixed metaphors aside. In the latter case, reality itself is on conservatives’ side, in that males can’t become females, and that is a much stronger base to stand on than complaining about what adults do in the privacy of their bedrooms.

                  1. Yes, women vote happened 100 years ago. It was also done properly, a constitutional amendment,

                    Sad that we have to cave on something like gay marriage that one sad confused man imposed on us.

                    1. While women’s suffarge did not become a popular cause until the late 19th century, women could vote or hold office or vote and hold office in several states before the federal government and the majority of the states ratified the Nineteenth Amendment in 1920. The federal Constitution had left who could vote to state jurisdiction. The newer Western states were more likely to support women’s suffrage than the older established east coast states.

                      I dislike the modern theme that no woman in America could vote before 1920 because the Constitution forbade it. Schoolhouse rock got that wrong.

                    2. “Yes, women vote happened 100 years ago. It was also done properly, a constitutional amendment,”

                      Almost 150 years, and without a Constitutional amendment. Starting in Wyoming in 1869. Oregon extended suffrage to the gyno-American community in the 1912 elections.

                      The Constitutional amendment you speak of didn’t make it POSSIBLE. It made it MANDATORY.

                    1. Say whut?

                2. “Yes, its happening with “transgendered” now. You see conservatives surrendering already.”

                  You poor dear, choosing to treat people like people is such a hardship…

              2. Right, but I expect a cataclysmic crash of society, followed by a reset. We should be prepared

                1. You just keep telling yourself that.

                  Did you check out the blog Surviving in Argentina yet? Your stockpile of ammo and guns won’t help you as much as you think. It comes down to food. Plus, most societies don’t collapse, they wither and shrink. A collapse of the dollar means 1929, not the Dark Ages, and that just means things get really, really interesting because the mass of humanity could blame conservatives for the crash and move to socialism, just like what happened in 1929.

                  1. Not quite.
                    A “collapse” of the currency is what happened in Weimar Germany, and what is happening in Venezuela right now.
                    1929 was the world economy freezing up–catastrophic deflation, as opposed to catastrophic inflation.

                    1. Weimar Germany’s and Venezuela’s collapse, if you could call it that, didn’t happen all at once, it was a process that played out over a decade or more. In other words, they withered. Even today, Venezuela limps along, its people more miserable and hungry than the day before. Absent barbarians at the gates, societies don’t usually collapse, even primitive ones.

                      Such a situation will be close enough, as for how it will affect the average Joe, that economic history about the causes and effects of the Great Depression aside, a comparison to 1929 is apt.

          2. “…but that horse has left the barn…”

            Or that schlong has entered the tuchis, if you will.

            1. Here’s the deal. The “actual” conservative position on that particular subject is that it’s just none of your damn business, unless and until you’ve been asked to participate.
              The whole “government should get involved in the type of sex people can have” thing the ARWP has going on… it’s leftist. Have only procreational sex and produce new workers for the State, Comrade Patriot!

              1. Wait, so “government involvement” isn’t what we have now courtesy of people who can’t seem to keep their bedroom exploits in their own bedroom?

                Funny. Here I thought that forcing others by gunpoint to accept your choices was government involvement.

                1. If you’re being forced to have gay sex at gunpoint, Vinni, you should speak up.

          3. “By that logic, though, we should penalize people who don’t exercise and eat too much sugar, as diabetes costs a sh*t-ton more to deal with.”

            Or (gasp) make them buy health insurance so the costs aren’t transfered unfairly on to others. Don’t exercise or watch what you eat? Fine, your insurance rates go up until you learn wisdom, or the effort required to earn enough to cover your premiums put you into a different health category.

      2. “Guns at least have the micro-rationale that they can affect third parties. Butt sex is entirely up to the two parties involved.”

        Absolutely correct. Well, unless the two parties have had a few drinks. Or one party asked more than once to put his or her schlong up the other person’s tuchis. Or one party works for the other party. Or one party is a professor and the other party is a student. Or one party is in a position to affect the other’s livelihood. Or one party hasn’t communicated that the other my put his or her schlong in said tuchis in precisely the manner prescribed.

        But other that that, sure.

        1. “Guns at least have the micro-rationale that they can affect third parties. Butt sex is entirely up to the two parties involved.”

          You don’t have to have two parties involved. Just take your own gun and shove it on up there.

    3. We’ve finally reached the point where sex is considered a normal, healthy part of life and no longer shameful, dirty, deviant, or taboo. And now people are having sex at lower rates than ever before.

      1. I think you have a warped understanding of history. It wasn’t so much that sex was considered taboo, dirty, deviant, etc, that’s just hyperbole and strawmanning. It was, depending on the time period, just certain kinds of sex acts, with certain kinds of people that were discouraged. We have the same taboos, the lines are just in different places, about sex with different types of people and things.

        1. What changed is that you went from a society where people had sex, but almost always with the possibility that a pregnancy could result, to one where people have sex, but can choose to ensure that a pregnancy will not result. That one little change alters the relationship between people and sex, most particularly the women kind of people, but as the changes worked though the ladyfolk, it affects the expectations of the menfolk, too.

          So, we used to pretend that first pregnancies could take anywhere from 3 to 9 months, and the ones after that take 9 months. Everyone knew what happened, but pretended not to. Now, people are honest about what they want and who they want it trom. This is mostly better.

    4. This is my rifle
      This is my gun
      One is for killing
      The others for fun

  4. Not to worry. The Second Circuit will find a way to apply a new, sui generis test which will once an for all eliminate nunchaku from the lawful possession or use in NYS, and ban all Bruce Lee movies in the bargain.

  5. I was hoping the decision would have said something about cultural appropriation and people of the improper culture and ethnicity using nunchaku and other so-called martial arts weapons…or for that matter daring to study (or far worse, teach!) martial arts…

  6. “Thus, even assuming that Defendant need only prove that nunchakus are not in common use to exempt them from Second Amendment coverage, she has failed to do so….”

    A little off topic, but replacing the generic “he” with a generic “she” doesn’t actually do anything to fix the fact that English lacks a gender free pronoun. It just underscores that feminism isn’t so much about ending patriarchy as it is about replacing it with matriarchy…

    1. Perhaps the defendant is a woman. Stranger things have happened.

    2. The defendant is Madeline Singas. I don’t wanna be presumptuous, but the use of “she” seems appropriate to me.

      1. “I don’t wanna be presumptuous, but the use of “she” seems appropriate to me.”

        IDK, a man was in the Miss Universe contest so seems reckless to assume this.

        1. Did you win?

      2. Mea culpa. I missed that.

    3. English has a gender free pronoun, it’s just generally lacking use. One would do well to remember.

      1. Well played.

      2. The pronoun “one” is arguably derived from the Latin word for man, so… problematic.

      3. Seeing as no-one is in charge of a language, consider its lack of use as a statement of its popularity.

        1. Every person who uses a language is in charge of it. In American English, the solution is largely singular “they”.

      4. “They” is perfectly acceptable as a singular gender-free pronoun.

  7. Maloney, himself a lawyer and martial artist, blogged about his case at http://www.fightingarts.com/re…..hp?id=456.

    In 2018 in Massachusetts, New York, and California it is still illegal to possess nunchakus unless related to training with a licensed martial arts school.

    1. In Massachusetts law I don’t see the martial arts school exclusion. But then, maybe that’s covered elsewhere.

      https://malegislature.gov/Laws/GeneralLaws/-
      PartIV/TitleI/Chapter269/Section10

    2. “Licensed” martial arts school?

      1. Businesses are licensed. You can’t get out of a fine for carrying your badass nunchuku by claiming you and your two buddies are a martial arts school, no matter how much time you spend together whacking yourself in the nuts with your nunchuks.

        1. Whacking yourself in the nuts sounds like evolution in action.

  8. Incidentally, the “in common use” test has one glaring problem, which is that the nature of arms in common use has been warped by laws adopted during the nearly 70 years the Court was refusing to uphold the 2nd amendment.

    1. Yes, sadly. When the military transitions to lasers or some such in the future, those weapons will be not protected because they will be “dangerous and unusual arms,” thus Heller negates one of the original purposes of the 2nd Amendment, which was having weapons commiserate to the military in civilian hands. I think, though, that the ubiquity of 3d printing, with metals, in the future, will help negate that.

      1. “commiserate to the military ”

        Now that’s gotta be typo of the week…. and yet at the same time, somehow actually appropriate.

        1. Ha! You are correct. Damn autocorrect.

    2. Yes, sadly. When the military transitions to lasers or some such in the future, those weapons will be not protected because they will be “dangerous and unusual arms,” thus Heller negates one of the original purposes of the 2nd Amendment, which was having weapons commiserate to the military in civilian hands. I think, though, that the ubiquity of 3d printing, with metals, in the future, will help negate that.

    3. Exactly. I have no doubt that full autos would be in common use if not for the NFA, given that any of the 15 million AR-15s on the market could have been built with trigger selectors for the same price.

      1. Really? Common use? Why? A fully-automatic weapon is not any more effective than a semi-auto unless you’re facing off with a large crowd of targets you’d like to shoot, and you don’t care if you shoot anything or anyone who happens to be behind them. That isn’t a very common situation, for most of us. I mean, rush-hour traffic, sure. Ebola outbreak, maybe.

        Fully-auto weapons appeal to two kinds of people: Yahoos who want to play G.I. Joe out in the woods at the edge of town, and people who only want one because they can’t have one.

        1. In common use, because it’s an almost trivial modification, and you don’t need to fire a machine gun in full auto mode. Reducing inventory complexity would have driven it, and the utility of burst mode for self defense.

          1. “Reducing inventory complexity would have driven it”

            No it wouldn’t. They’d charge $X for a semi model, and $X+Y for full-auto. Most people would choose the semi model and keeping the $Y in their pocket, rather than pay for a feature they don’t need.

            Except for the two types of people I described above..

            1. “No it wouldn’t. They’d charge $X for a semi model, and $X+Y for full-auto. ”

              The cost difference between a full auto and semi auto fire control group is negligible at best, and maybe negative: Y may be a negative number in your equation. Consider, for example, why AR front sight blocks usually have bayonet lugs, even though no one has the matching bayonets (will a bayonet designed for a 14.5 inch barrel even work on a 16 inch barrel? I dunno; never even seen one for sale). Once you build forging dies for your Army contract, it’s cheaper to just put useless bayonet lugs on civilian rifles. Ditto, I expect, for a full auto trigger group.

              Heck, what’s even cheaper than a semi auto anything? Answer: an open bolt fixed firing pin full auto subgun, e.g. Stirling etc. ‘Full auto costs more to manufacture’ just isn’t true.

        2. Military historians and firearms engineers, designers are also interested in full auto weaponry. They study it’s evolving technology and how these weapons affect the strategy and tactics of warfare.

  9. Factoid: they were originally just called, “nuns,” that is, until Chuck Norris picked them up.

    1. heh

  10. Genius NY legislator:

    https://twitter.com/DLoesch/status/
    1075118214961618944

  11. Well, this is good news for nunchuku manufacturers, and not-so-good news for would-be nunchuku masters’ tender body parts.

  12. This thread is incomplete without this: Kung Fu Fighting

  13. How many nuns could chuck a nunchuck if nuns could chuck a nunchuck?

      1. Except those really ought to be either Buddhist nuns or Shinto Shrine Maidens.

  14. Doing some reading. In their day in Okinawa, nunchaku was not a popular or widely used weapon.
    The popularity in modern martial arts seems to stem from the fact that improper use punishes the user: it is a way of instilling self discipline in the martial arts student.

    1. The role of nun-chucks even as a weapon, ironically, stems from the fact that the Japanese were disarming the peasants of Okinawa after conquering it. It was an agricultural tool before being a weapon, and the Okinawan’s turned it into a weapon, modifying their traditional karate for its use. Carrying a 12″ blade in a sheath is far deadlier and superior.

      1. Speak softly, and carry a big stick.

      2. mad_kalak.
        Carrying a 12″ blade in a sheath is far deadlier and superior.

        Which is why Okinawans used the sai.

  15. Bruce Lee plays ping-pong with nunchucks:

    https://www.youtube.com/watch?v=UMUGmKRkaxo

    1. One of the most amazing things I’ve ever seen.

      1. It was faked, not too long ago, and of course, after his death; but it’s great fun to watch.

    2. “Bruce Lee plays ping-pong with nunchucks:”

      Yeah, and Bruce Lee died very young. Coincidence?

      1. Probably. While he died of cerebral edema, it wasn’t apparently a result of hitting himself in the head with nunchucks.

  16. But but but……..80s movies!

    This ban always struck me as particularly odd. Not being an expert, they appear to take a whole lot of skill to user properly and are no more concealable than a buck knife.

    1. Some countries (Britain, France, Finland) see US restrictions on silencers as silly. I guess our 1930s legislators watched more gangster movies than theirs did.

      1. I’m not following this comment, that “Britain, France, …see US restrictions on silencers as silly.” What sense does that make if one can’t have a firearm? Rifles and pistols are essentially banned. What’s the point of a silencer if there’s no firearm on which to fit it?

        1. “France is in 12th place in the world in the rankings of gun ownership, … around 10 million … other studies say that there may be as many 20 million weapons owned by civilians in the nation of 65 million people.”

          Source

          1. Thank you. Reading further it seems gun ownership went in half in France from 2006 to 2016 due to stricter laws. Silencers for rimfire are apparently unregulated, otherwise they are “Class B,” like rifles, etc. But the gun ownership laws are strict.

            In Finland silencers are a firearm part, and regulated.

            In Norway silencers are unregulated.

            And so on.

            1. US silencers are subject to a $200 federal registration tax and lengthy background check delay. Other countries regulations are not so onerus.

              1. It’s actually a Department of the Treasury transfer tax, not a registration fee. There’s an actual, physical stamp!

  17. Good for Judge Pamela Chen but

    Moreover, unlike a sawed-off shotgun, gun without a serial number, or pipe bomb?weapons that courts have found to be outside the ambit of Second Amendment protection

    I believe you are not allowed to remove/alter/ or otherwise tamper with a firearm’s serial number but there was no requirement for one to be manufactured with a serial number until the GCA of 1968. There weapons are perfectly legal and transferable. Additionally, you can construct your own firearm w/o a serial number.

    1. Gun with removed or altered serial number. Often done to conceal theft or origin.
      NCIC has used serial numbers of stolen guns to return them to their rightful owner.
      A lot of cheap .22 rifles and shotguns made as farmers’ tools were made w/o ser num before 1968.

    2. “Additionally, you can construct your own firearm w/o a serial number.”

      That’s not so, you are required to apply a serial number if you make a gun in the U.S.

  18. Maloney had already been before SCOTUS and won. 8 years, 5 months, and 19 days ago.

    https://www.leagle.com/decision/insco20100629b44

    1. “…and won”

      Specifically, what he won then was a cert petition. The original case was pre-McDonald and was dismissed because the 2nd wasn’t yet incorporated against the states. Post McDonald:

      “However, in light of its decision in McDonald v. City of Chicago, 561 U.S. 742
      (2010) (applying the Second Amendment as against the States through the Fourteenth
      Amendment), the United States Supreme Court vacated the Second Circuit’s judgment and
      remanded the case to the Second Circuit for further consideration.”

      (from the procedural history in the decision linked in the OP)

      So the SC hasn’t spoken on the merits; it just said if the sole reason for dismissal was a lack of incorporation, McDonald changed things.

      1. Absaroka – One can “win” a cert petition (i.e., the petition is granted) and still lose). In this case, his cert petition was granted (Win #1), the judgment was vacated (Win #2), and remanded for further consideration in light of McDonald v. Chicago (Win #3).

        Your real name wouldn’t be Don Kilmer, would it? He once told me that he won his Nordyke v. King appeal. I reminded him that his final appeal was dismissed as moot, he was denied attorney fees, and his cert petition seeking attorney fees was denied.

        Then he blocked me.

  19. “the dangerous potential of nunchucks is almost universally recognized”

    That’s the funniest part of this. I’ll grant that it’s *possible*, with a lot of training or even more luck, to injure someone (other than yourself) with nunchuku. But it’s not easy, and I challenge you to find a historical example of nunchuku used as an effective weapon. They look cool, but are generally inferior to:

    1) A stick

    2) A bike chain and lock

    3) A bat

    4) A tennis racket

    All of which are legal.

    1. “All of which are legal.”

      Not when used as an effective weapon.

      1. I don’r know about where you live, but where I live use as a weapon of offense is illegal, but use as a weapon of defense is legal. Same is true in the UK even:

        HOUSEHOLDERS AND THE USE OF FORCE AGAINST INTRUDERS

        Joint Public Statement from
        the Crown Prosecution Service and
        the Association of Chief Police Officers

        Anyone can use reasonable force to protect
        themselves or others, or to carry out an arrest
        or to prevent crime. You are not expected to make
        fine judgements over the level of force you use
        in the heat of the moment. So long as you only do
        what you honestly and instinctively believe is
        necessary in the heat of the moment, that would be
        the strongest evidence of you acting lawfully and
        in self-defence. This is still the case if you use
        something to hand as a weapon.

        1. That’s the think. New York forbids possession of nunchuku even in the home, on the theory that they are designed as a weapon and (very) occasionally used as such.

          Plaintiff is, fascinatingly, the sole practitioner of a self-created nunchucku-focused martial arts style (the name is Hebrew for “white rabbit”), who complains that he would like to own nunchuku for home defense and to train his sons in their use for the same period.

        2. “I don’r know about where you live, but where I live use as a weapon of offense is illegal, but use as a weapon of defense is legal.”

          Well, I don’t live in Oregon any more, but I did for a long time and it’s the state code I’m most familiar with.

          You have the definition of dangerous weapon at ORS 161.015(1).

          And, it’s illegal to use or attempt to use a dangerous weapon, per ORS 166.220 (1).
          ORS 1666.220
          (1) A person commits the crime of unlawful use of a weapon if the person:
          (a) Attempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon as defined in ORS 161.015 (General definitions); or.
          {…}

        3. The UK says this, but they don’t follow this. If you ask the UK Police, the only thing you can use against an attacker is a marker dye, and you must be careful not to hurt your assailant with it!

      2. But they’re legal to own and to train with. Agreed, when used as a weapon, you have standard use of force rules.

  20. Heller … endorsed the ‘historical tradition of prohibiting the carrying of dangerous and unusual weapons.

    Why would anyone carry a ‘weapon’ that is NOT dangerous?

    ” . . . keep and bear arms . . .”
    There is not restriction in the original; all arms, past present and future, are covered. This includes but is not limited to lasers, black powder muskets, pistols, swords, and metallic cartridge rifles regardless of reloading method.

    1. Dangerous and usual weapons are OK. A personal claymore mine that is unsuitable for personal defense in public. Firearms that do not look like guns which won’t scare off anyone. A chainsaw or a baseball bat wrapped in barbed wire. Dangerous and unusual weapons. Carrying. In public. Not OK. You can own a flamethrower for clearing brush and weeds or simply as a collector’s item in a lot of places, but carrying it in public for protection would fall under carrying a dangerous and unusual weapon.

    2. “Why would anyone carry a ‘weapon’ that is NOT dangerous?”

      An unloaded firearm is not dangerous. Fencing foils used in competitions doing have pointy tips. Billions of toy guns have been sold in this country. And so on.

    3. In this context “dangerous” doesn’t mean dangerous to somebody you’re trying to hurt. It means dangerous in the sense of collateral damage and accidents.

  21. Doesn’t this ruling ignore the previous precedent in New York v. Funky Chinamen from Funky Chinatown that “Everybody was kung-fu fighting” is a compelling state interest?

    1. You’re late the party with this joke. Somebody already brought up “Kung Fu Fighting.”

  22. The decision ignores the fact that Heller did not overrule United States v. Miller. As Heller put it, “United States v. Miller does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon the right to keep and bear arms protects to those used by the militia, I.e. those in common use for lawful purposes.”

    A more careful analysis of Miller and Heller is needed. Since Miller wasn’t overruled, and no well-regulated militia uses nunchukas, there needs to be an argument that Heller really intended to define “militia” in a way that completely eliminates any meaning for the textual use of “a” rather than “the” militia or the qualifier “well-regulated.”

    To say that “the” militia is simply the people and anything they may lawfully do is what the militia does is to read the textual qualifier on the word “militia” the Framers chose – “a well-regulated” – completely out of the Amendment’s interpretation.

    I support a textualist interpretation of the 2nd Amendment reluctantly, as a textualist, because I believe in constitutional legitimacy, not because I am convinced it is good policy. The right, therefore, only extends as far as the text says it extends. I would apply rather than overrule Miller.

    A nunchukas set is not the kind of weapon a well-regulates militia, acting as a militia rather than merely as private individuals, uses. It is therefore not the kind of weapon the 2nd Amendment protects.

    1. “A nunchukas set is not the kind of weapon a well-regulates militia, acting as a militia rather than merely as private individuals, uses. It is therefore not the kind of weapon the 2nd Amendment protects.”

      I think that’s where we’re getting wrapped around the axel on this topic: everything is a weapon, or at least everything the State decides, perhaps arbitrarily, is a weapon. And that’s not even relevant, because we haven’t even argued the equivalency of arms and weapons. As a textualist this should trouble you.

      What are arms? Are nunchukas arms? I think not. Historically, the were invented and used because they were available to people under an arms prohibition.

      Is a stick an arm? A rock? A bottle? No, certainly not. Why are two sticks joined by a chain arms? Only because we live under a totalitarian state, when our state bans them.

      Of course a militia, well regulated or otherwise, don’ use nunchukas – they have arms! Remember, you can carry a hammer even though it’s not in common use among soldiers in the military (though I’m sure if it became popular, some state would ban it).

      1. If I carried a hammer in public as a weapon of offense or defense that would be in violation of my state’s “going armed” statute. The act of carrying in public with intent to go armed is illegal, but the hammer is not banned.

  23. Is some legal scholar going to track the uptick in internet videos coming out of NY of going hitting themselves in the privates as a result of this decision?

  24. My go-to for road rage situations under the front seat of my car is not martial arts stuff, but a good old American hickory axe handle that broke off on a stubborn stump years back. Never used it for road rage, but brandished it once when our Sunday drive turned into witnessing a nasty domestic violence incident that had spilled out on the lawn as the woman was trying to flee and the abuser wasn’t having that.

    Hickory sticks are also good for breaking up dog fights. Best if you have had LE training and know the nightstick techniques for getting compliance without causing serious injury.

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