Friday, January 30, 2009

Heller, incorporation, the Second Circuit, and nunchaku

Nunchaku_shiny_1 In another opinion refusing to incorporate the Second Amendment to the states, the Second Circuit considered a challenge to a charge of possessing a chuka stick in violation of N.Y. Penal Law § 265.01(1). 

The New York statute defines a “chuka stick” (or “nunchaku”) as any device designed primarily as a weapon, consisting of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury upon a person by striking or choking. Id. § 265.00(14).

The Second Circuit opinion does not discuss originalist perspectives on nunchakus, although that would be interesting to contemplate!  Instead, the brief per curiam opinion, Maloney v. Cuomo, available as pdf here, cites Presser v. Illinois, 116 U.S. 252, 265 (1886), in support of its conclusion that "the Second Amendment applies only to limitations the federal government seeks to impose" on any Second Amendment right.   

The panel consisted of Judges Rosemary Pooler, Robert Katzmann, and Sonia Sotomayer, who has been mentioned lately as a strong contender for a Supreme Court appointment by Obama. 

RR

http://lawprofessors.typepad.com/conlaw/2009/01/heller-incorpor.html

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