Skip to comments.Sotomayor 2d Am. case now at Court
Posted on 06/27/2009 6:12:38 PM PDT by neverdem
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 Amendments 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. Maloneys 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 Maloneys claim was Circuit Judge Sonia Sotomayor, President Obamas 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 Amendments 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 of immunity of individuals, and thus applies to the states through the Fourteenth Amendments Privilege and Immunities Clause.
Maloneys 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 Sotomayors 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.
Article printed from SCOTUSblog: http://www.scotusblog.com/wp
URL to article: http://www.scotusblog.com/wp/sotomayor-2d-am-case-now-at-court/
URLs in this post:  petition: http://www.scotusblog.com/wp/wp-content/uploads/2009/06/maloney-v-rice-petition.pdf  appendix: http://www.scotusblog.com/wp/wp-content/uploads/2009/06/maloney-v-rice-pet-app.pdf
As I recall, shortly after he became Chief Justice, Justice Roberts felt obliged to recuse himself from a case because he had been a part of the Appeals Court panel whose decision was being contested. As a consequence, the SCOTUS arrived at a split decision (4-4) and the appeal failed -- whereas he would've upheld it.
My recollection is that the recusal wasn't mandatory -- but was "customary". Thus, not the kind of custom that I would expect a liberal to respect...
It was Hamdan v. Rumsfeld, ugh.
I agree. They always cheat and never follow tradition or protocol if it advances their agenda not to do so.
And, call me crazy, but I just have a sick feeling about these cases. I feel like that Trojan Horse thing is happening.
GOP to press Sotomayor on gun rights "A Latina Judges" speech UC Berkeley School of Law, 2001, 4th comment
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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.Thanks neverdem.
Thanks for the ping!
It's said that the thing was actually a farm implement, or derived from one anyway. But it may have been some other sort of ordinary tool. One theory is it is a combination of a bridle and grain flail. It's use as a weapon is said to be the result of weapons restrictions put in place on Okinawa by the Japanese in the 17th century.