The Volokh Conspiracy
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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]….