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Sotomayor 2d Am. case now at Court

UPDATE: The Maloney petition has now been docketed as 08-1592.


A Port Washington, N.Y., lawyer and martial arts enthusiast asked the Supreme Court on Friday to use his case to expand the coverage of the Second Amendment’s “right to keep and bear arms” so that it applies to restrict or bar state and local laws, as well as those at the federal level.

James M. Maloney’s petition in Maloney v. Rice is the third case on that point to reach the Court in recent weeks. This one, however, seeks to challenge a ruling that has gained a special prominence because one of the judges on the Second Circuit Court panel deciding against Maloney’s claim was Circuit Judge Sonia Sotomayor, President Obama’s choice for a soon-to-be-open Supreme Court vacancy.

The Maloney petition and the appendix (a lengthy file) are available for downloads. (It has not yet been assigned a docket number.) The already pending cases on the issue are National Rifle Association v. City of Chicago (08-1497) and McDoanld v. City of Chicago (08-1521).

Another novel feature of the Maloney case is that it is not a challenge to the constitutionality of a gun control law; rather, it targets a New York state law on weapons control, so far as that law applies to a “chuka stick” (or “nunchaku”).

That is a weapon often used in martial arts training, but also in increasing use as a police weapon to subdue and control suspects. James Maloney wants the right to have the weapon in his home for self-defense, just as others might do with a handgun. (The chuka weapon consists of two lengths of wood or other rigid material joined by a short strand of rope.)

Even so, the questions posed by the new position raise the constitutional issue in broad form, so that the outcome would apply to guns and other persoonal weapons, too.

The first question asks simply whether the Second Amendment’s guarantee of an individual right (as recognized by the Supreme Court last year in Distict of Columbia v. Heller) applies to the states through the Fourteenth Amendment. The second question asks whether the individual right qualifies as “a privilege or immunity” of individuals, and thus applies to the states through the Fourteenth Amendment’s Privilege and Immunities Clause.

Maloney’s lawyers, in the new petition, urged the Supreme Court to agree to hear this new case along with the two previously filed to challenge a handgun ban in Chicago.

Hearing all three together as a unit, the petition argued, “would put before the Court the fullest possible range of factual and legal settings in which to consider and resolve the burning issue of Second Amendment incorporation.”

But, if the Court wishes to address the “incorporation” issue in just one case, the Maloney petition suggests that it be his case. The New York law, the petition noted, is a simple ban on possession of the listed weapons, including chuka sticks. In addition, Maloney challenges the law “merely to theextent it prohibits possession in the home.”

That, the petition contended, makes his case the simpler one, focusing only on apply to state and local laws “the Second Amendment right to keep arms, in the home.”

The difficulty that the Maloney case could encounter as the best vehicle for review of the issue, however, would arise if the Senate confirmed Judge Sotomayor’s nomination for a seat on the Supreme Court. Because she was on the appeals court panel that decided that very case, she presumably would not feel free to participate in the case at the Court.

That might not make a difference in the outcome, though, unless at least one among the five Justices who formed the majority in the Heller decision was unwilling to extend that right to the state and local level. Then, the possibility would arise that the Court might wind up splitting 4-4 on the Maloney case, which would lead to a simple decision upholding the Second Circuit ruling against incorporation.