351 F. Supp. 3d 222
E.D.N.Y.2018Background
- Plaintiff James Maloney, a pro se attorney and martial-arts practitioner, challenged New York Penal Law § 265.01(1) (the 1974 ban on "chuka sticks"/nunchaku) as violative of the Second Amendment; he sought a declaration permitting in-home possession/use.
- Litigation began in 2003; earlier dismissals were vacated and remanded after McDonald; the Second Amended Complaint proceeded to a bench trial (2017) limited to the Second Amendment claim.
- The trial record included testimony about martial-arts use, sales data from several distributors (retail sales of at least 64,890 wood/metal nunchaku from 1995–2018), and very limited local prosecution data (five Nassau County nunchaku-related prosecutions during a ~2-year window).
- The court applied the Second Circuit’s NYSRPA two-step framework and placed the burden on the State to prove nunchaku fall outside the Second Amendment (by clear and convincing evidence).
- The State offered scant empirical evidence of typical unlawful possession or widespread criminal use; the court found the State’s evidence insufficient.
- The court held § 265.01(1), and related manufacture/transport/disposal provisions in § 265.10 as applied to nunchaku, unconstitutional under the Second Amendment and invalidated those provisions as applied to nunchaku.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether nunchaku fall within Second Amendment protections | Maloney: nunchaku are bearable arms typically possessed by law-abiding citizens for lawful purposes (martial arts, home defense); ban on in-home possession unconstitutional | Singas: State argued nunchaku are dangerous/unusually used unlawfully and thus may be excluded from Second Amendment coverage; urged deference to statute | Court: nunchaku are bearable arms and State failed to prove by clear and convincing evidence that typical possession is for unlawful purposes; thus protected |
| Whether nunchaku are "in common use" | Maloney: sales and martial-arts use show common-lawful use | Singas: argued dangerousness and limited lawful use justify exclusion; low prevalence evidence | Court: even on common-use factor State failed to show they are not in common use (retail sales substantial; lawful use prevalent) |
| Proper level of scrutiny and whether the ban survives it | Maloney: total ban on protected conduct requires heightened review and fails | Singas: previously argued rational-basis; alternatively emphasized public-safety justification for broad ban | Court: at least intermediate scrutiny applies; State did not show the ban is substantially related to public-safety interest; ban fails |
| Remedy: as-applied relief vs. statutory rewriting | Maloney: sought in-home exception / ability to possess/use nunchaku at home | Singas: resisted narrowing or invalidation | Court: cannot judicially rewrite statute to carve exceptions; but declared § 265.01(1) and related parts of § 265.10 void as applied to nunchaku (effectively permitting possession/use) |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (Supreme Court recognition of an individual right to keep and bear arms and framework for "dangerous and unusual" weapons)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (Second Amendment incorporated against the States via the Fourteenth Amendment)
- New York State Rifle & Pistol Ass'n, Inc. v. Cuomo, 804 F.3d 242 (2d Cir. 2015) (adopted two-step framework; government bears burden to rebut presumption of Second Amendment protection)
- Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) (per curiam/concurring guidance that weapon’s dangerousness alone does not remove Second Amendment protection; use of sales data to show common use)
- Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) (intermediate scrutiny applied to regulations burdening core Second Amendment interests; government must offer evidence, not speculation)
- Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017) (total ban on core Second Amendment right is invalid)
- Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (intermediate-scrutiny formulation: regulation must be substantially related to an important government interest)