By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
Sotomayor: Sir, in Maloney, we were talking about nunchuk sticks.
Hatch: I understand.
Sotomayor: Those are martial arts sticks.
Hatch: Two sticks bound together by rawhide or some sort of a...
Sotomayor: Exactly. And — and when the sticks are swung, which is what you do with them, if there's anybody near you, you're going to be seriously injured, because that swinging mechanism can break arms, it can bust someone's skull.
Though her words sounded grave, as she spoke them into the microphone, Sotomayor looked as calm and content as one of those smiling Buddha statues, even twirling her hand in the air at one point to illustrate the movement of said "nunchuck sticks." The media and the blogosphere jumped on the exchange as a moment of levity in a very weighty day. The Tonight Show With Conan O'Brien produced an infomercial parody of Sotomayor selling the face-bashing nunchucks spliced with clips of Bruce Lee. "When they outlaw nunchucks only outlaws will smack themselves in the head/groin with 2 sticks connected with rawhide!" wrote a blogger on Daily Kos. A Huffington Post blogger quipped, "I suppose Republicans worry that there's a slippery slope between 'they're taking our nunchucks!' and 'they're taking our guns!' Or something."
Actually, that slippery slope was exactly why the National Rifle Association and other gun-rights groups opposed Sotomayor's nomination. What the chuckling commentators couldn't seem to grasp was that this silly case involving nunchaku could have significant implications for the ability of state and local governments to restrict the possession of guns and other weapons.
The Maloney in Maloney v. Cuomo is an attorney in New York. In 2000, police searched his Long Island home after a phone-company worker mistook a telescope Maloney was peering through for a rifle. They didn't find any guns, but they did find a pair of nunchaku. Maloney had been interested in martial arts since he was a teen, and he practiced with the nunchaku for both exercise and increased dexterity. It was also his preferred weapon for self-defense. "You go to sleep, you're worried about a home invasion, you don't want to have a shotgun by your bed because, you know, that's a little overkill," he explains. "A pair of nunchaku I can leave tucked under my mattress 24/7, with very low risk that my kids are going to pick them up and blow their brains out. So they're handy."
Maloney was charged with a possession of a dangerous weapon, punishable by up to one year in prison.
In 1974, New York politicians had become alarmed that the devices seen in popular martial arts movies were being used by street gangs and young criminals. One assemblyman wrote the governor about the "chuka stick," a particularly dangerous weapon that "has no other purpose than to maim or, in some instances, kill." The state swiftly added the nunchaku to its list of banned weapons, which, at the time, included blunt-force instruments like brass knuckles and blackjacks. While California enacted a similar law, New York is the only state with an all-encompassing ban on nunchaku. It's illegal to buy or sell them, illegal to make them, illegal to perform with them at martial arts demonstrations and illegal to keep them in your own home.
The law made no sense to Maloney. "In New York, anyone who doesn't have a criminal record and can fill out the federal forms at a gun shop can buy a shotgun and have it in their home," he says. "And a shotgun is a whole lot more dangerous weapon than a pair of sticks connected by a cord."
More than 30,500 Americans died from firearms in 2006, according to a National Vital Statistics report put out by the Centers for Disease Control. There are no national statistics on nunchaku-related deaths, and a news database search for "nunchaku" and "death" turns up just one report of a person who died in the U.S. after being struck by a nunchaku, back in Ohio in 1987.
After three years, Maloney was able to get the weapon charge dropped when he pleaded guilty to disorderly conduct. He then sued New York State on the grounds that the nunchaku ban violated his constitutional right to bear arms. The Second Amendment, once the province of pry-it-from-my-cold-dead-hands gun lovers, suddenly became a rallying point for nunchaku enthusiasts; Maloney himself is the founder of NARNIA, the National Alliance for Relief from Nunchaku Intolerance in America.
But when his case finally made it to the Second Circuit, Sotomayor and her fellow federal judges ruled against Maloney. Since the Supreme Court has never ruled that the Second Amendment applies to states, all the court could do was judge whether New York was rational in banning nunchaku as an unusual and dangerous weapon. (Although last year the Supreme Court did overturn parts of the Washington, D.C., handgun ban, the constitutional right to bear arms was deemed relevant because the capital is a federal enclave, not a state.)
Sotomayor elaborated on her decision during her confirmation hearing. Nunchaku "can cause not only serious, but fatal damage," she said. "So to the extent that a state government would choose to address this issue of the danger of that instrument by prohibiting its possession in the way New York did, the question before our court — because the Second Amendment has not been incorporated against the state — was, did the state have a rational basis for prohibiting the possession of this kind of instrument?"