Analysis

“Second Amendment law,” a federal appeals court remarked earlier this week, “remains in its infancy.”  But, only about a year after the Supreme Court’s landmark ruling on gun rights in District of Columbia v. Heller, the Justices could soon be faced with one of the most significant issues left undecided by Heller.  That is whether the Second Amendment’s guarantee (as interpreted in Heller) of a personal right to have a gun restricts the power of state and local governments to regulate personal weapons (as it already does for the federal government).

Somewhat surprisingly, the case now most likely to reach the Court first on that issue will not be about guns, but about “chuka sticks.”  Still, those are treated, at least by New York state, as a personal weapon, and the legislature there has banned even their possession in the home.  Formally named a “nunchaku,” a chuka is two pieces of rigid material joined by a thong or rope.  The legislature found they could be used to injure — or even kill — someone by striking them or choking them with one of the sticks while holding the other.  But martial artists also use them in training exercises.

A Port Washington, N.Y., lawyer, James M. Maloney, was arrested for having a chuka stick in his home nearly nine years ago. His case has become a significant test of whether he had a Second Amendment right to have that weapon for personal use. 

On June 26, with the aim of a pro bono Washington lawyer, Jeffrey Bossert Clark, Maloney expects to file for Supreme Court review of his Second Amendment claim.  (On Monday, Justice Ruth Bader Ginsburg set that date for the filing.  She acted on an application [Maloney v. Rice, 08A907] seeking more time to file and laying out the issue to be raised. The application, along with the Second Circuit Court ruling at issue, can be read here.)

Maloney’s petition, his lawyer wrote, will argue “that the individual right conferred by the Second Amendment should be held incorporated against the states,” through the Fourteenth Amendment.  The Second Circuit, in a decision Jan. 28 (Circuit docket 07-581), dismissed Maloney’s challenge to the New York law.

The Circuit Court said “it is settled law that the Second Amendment applies only to limitations the federal government seeks to impose on this right.” It cited an 1886 Supreme Court decision to that effect — Presser v. Illinois — as well as its own Circuit precedent reaching the same conclusion — Bach v. Pataki (2005).  The Supreme Court’s Heller decision last year, the Circuit Court said, “does not invalidate this longstanding principle.”

That conclusion, however, conflicts directly with the Ninth Circuit Court’s decision last Monday in Nordyke, et al., v. King, et al. (Circuit docket 07-15763).  (The Ninth Circuit ruling was discussed in this earlier post.) That is the sort of conflict that can lead the Supreme Court to step in to resolve the dispute. If the lawyers in the Nordyke case pursue an early appeal to the Court (a decision not yet made), both cases could be up for consideration together by the Justices.

Although the Second Circuit concluded that only the Supreme Court could reopen the “incorporation” issue because Presser is a controlling precedent, the Ninth Circuit found it was not bound by that 1886 ruling.  Pressser, the Ninth Circuit said, only rejected one theory, or at most two theories, of “incorporating” part of the Bill of Rights to apply to the states, leaving open the third theory — one-by-one, or selective, incorporation of specific rights toward the states through the Fourteenth Amendment’s Due Process Clause.

Although the Supreme Court in Heller did not resolve the application of the personal gun right to the states, and did not say whether that right was a “fundamental” one of the kind that has been extended to the states, the Ninth Circuit examined some of the same history consulted by the Supreme Court in Heller and concluded that the right was both “fundamental” and was thus binding on state and local government, too.

The Nordyke case also could put before the Justices another issue that Heller did not settle: what did the Supreme Court mean when it suggested that the Second Amendment would allow government to bar “the carrying of firearms in sensitive places.”  The Ninth Circuit found that a county fairgrounds, where California’s Alameda County has banned all guns, qualified as a “sensitive place.”

Thus, the Nordyke case might provide the Supreme Court with an opportunity to answer additional questions about Heller’s meaning and scope.

None of this, however, would be resolved during the Court’s current Term. The Justices are likely to recess for the summer close to the end of June.  The Maloney case on “chukas” — and perhaps the Nordyke case on guns, as well — could be ready for the Justices’ action early in the new Term starting in October.

Meanwhile, the incorporation issue will be explored by other appeals courts, including the Fifth and Seventh Circuits in already pending cases.

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