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Sonia Sotomayor could declare martial law on Kevin Orcutt's nunchaku

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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?"

Maloney's argument against that assertion: the Orcutt Police Nunchaku.

David Kopel, research director for the Golden-based Independence Institute and a Second Amendment expert, flew to Washington to testify at the Sotomayor hearing. Sotomayor's statements and rulings on the nunchaku strike him as "pure declaration" rather than "legal analysis," Kopel says. She essentially said "the ban is rational because [nunchaku] could injure someone," he explains. "That's a rationale that would allow the banning of any gun, bows and arrows, knives, martial arts equipment or, for that matter, baseball bats."

Kopel, too, thinks the OPN is a good argument for why New York's total ban on nunchaku goes too far. "The fact that police officers use nunchaku shows that there's another example of how they have many, many legitimate uses," he says. "Nobody ever claimed that Maloney was going to do anything wrong. All he wanted to do was peaceful martial arts practice. That was undisputed."

Maloney has cited Orcutt many times in written and oral arguments over the years, including a current petition for his case to be heard by the Supreme Court that uses the OPN as an example of how nunchaku are used for "control of and/or self-defense against unarmed attackers." In his effort to get his case heard before the Supreme Court, Maloney says, "I would probably need testimony from someone like Kevin Orcutt."

If the justices side with Maloney and throw out New York's ban on nunchaku, their ruling could trigger a flood of lawsuits across the nation from people arguing that other bans on weapons ranging from assault rifles to switchblades violate their now-incorporated right to bear those arms.

Orcutt not only agrees that his device has "effectively demonstrated the nunchaku's other uses for law enforcement," but he argues that the OPN often acts as a preventative measure to the kind of skull-cracking violence so vividly described by Sotomayor. And he backs this up with a litany of scenarios: a handcuffed suspect is kicking at cops from the back of a patrol car, an estranged husband refuses to release his bear grip on a crying infant, an intoxicated man says he's cooperating but continues to strain against an officer's grip, a mentally ill woman resists coming out of a closet cluttered with unknown items. Such situations could end quickly or end badly — and the primary function of the OPN is to eliminate any wiggle room for escalation. "Restraint and control is the ultimate objective with these," Orcutt says.

Still, since nunchaku can be used for blunt force, Orcutt is supportive of laws that prohibit nunchaku as concealed weapons or being used with intent to commit a crime — as is the case in many states, including Colorado. But he thinks that the New York law that snagged Maloney — and got Sotomayor on the record — is excessive. "A guy has a pair of nunchaku under his bed at his own home and suddenly he's a criminal?" Orcutt says. "Come on."


Had Kevin Orcutt gone to high school in New York rather than Colorado Springs, he might have found himself tempted to break the law. As a senior at Air Academy High School, he began taking martial arts classes at the local community college. "I was a big fan of Bruce Lee," Orcutt remembers. "I was no different than anybody else." But it was his sensei, a master in judo and aikido, who really sparked Orcutt's passion for martial arts. He learned defensive tactics, how to use an opponent's force against him. And when it came time perform his kata to earn his blackbelt, Orcutt chose the nunchaku as his demonstration weapon.

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Jared Jacang Maher