May 6, 2009 12:00 PM
If Michaelangelo was your favorite Teenage Mutant Ninja Turtle, you just might like James Maloney. Mr. Maloney has asked the United States Supreme Court to determine whether the Second Amendment applies to the states. Except, in a twist, Mr. Maloney is not seeking vindication of gun rights. Instead, he seeks a decision upholding his right to possess nunchucks. That’s right—nunchucks.
The legal issue here, however, has nothing to do with the relative utility of nunchucks, throwing stars or handguns as instruments of self defense. Rather, the issue is whether the Second Amendment applies to state and local governments. Maloney, arrested and charged in 2000 for violating New York state’s prohibition on the possession of nunchucks, claims that it does. Unfortunately for Maloney and Michaelangelo, both the state of New York and the federal Second Court of Appeals disagree with him.
Confused? For the legally uninitiated, the position of the Second Circuit might not make any sense. If the Second Amendment protects the right to bear arms, how can it not apply to the states?
The answer is a legal anachronism. When the Bill of Rights was adopted, it only applied to the federal government. Daniel Webster had a right to freedom of speech, but only as a protection against the federal, and not state governments. That changed with the ratification of the 14th Amendment and subsequent Supreme Court decisions explaining the scope of its Privileges and Immunities Clause. Since the late 1800s, the Supreme Court has issued opinion after opinion holding that the individual rights contained in our Bill of Rights apply to state governments just as much as they apply to our federal behemoth. The rationale is simple: the Bill of Rights holds little meaning if it doesn’t apply to state governments. In fact, the Supreme Court has incorporated every individual right within the first eight amendments with one notable exception—our Second Amendment right to bear arms.
Gun owners are justified in asking why the Second Amendment remains the red-headed step-child. Last year, the Supreme Court famously upheld the gun rights of residents of Washington, DC in District of Columbia v. Heller. That case was the first significant gun rights case heard by the Court since 1939. But, as evidenced by Maloney’s example, the Heller case means nothing if the Second Amendment is not incorporated against the states. If the state of New York can ban nunchucks, then Missouri—or any state—can ban handguns or any other weapon.
Of course, justice moves slow. Maloney was arrested in 2000. He filed his claim that the nunchuck ban was unconstitutional in 2003 and the Second Circuit rejected it in January 2007. On April 16, 2009, Maloney finally got around to hiring the big guns, bringing a powerhouse DC law firm on board to ask the Supreme Court to hear his case. Now he and millions of law-abiding gun-owners and nunchuck enthusiasts across America must wait. If the Court decides to hear the case, it could complete the revival of the Second Amendment. If it decides not, the Second Amendment will become a constitutional “right” with no meaning.
Jay Barnes is an attorney, Realtor, and writer from Jefferson City, Missouri. He has previously served as General Counsel for the President Pro Tem of the Missouri Senate, Policy Counsel and Chief Speechwriter for Missouri Governor Matt Blunt, and Policy Director on Kenny Hulshof's 2008 campaign for governor. He also serves as a director for Missourians for Responsible Government, which publishes this site.
The rationale is simple: the Bill of Rights holds little meaning if it doesn’t apply to state governments.
