Didn't see this coming. I expected that, after incorporation, the
Heller line would go after other gun bans. Perhaps targeting state-level handgun or "assault-weapon" bans. Or, instead of focusing on the scope, they'd focus on getting an explicit ruling requiring Strict Scrutiny, and proceed to go after laws placing an undue burden on the right.
But now it appears that the next case is going to be about your right to
keep and bear Nunchucks. And the case is being appealed to SCOTUS by none other than "BigLaw"
Kirkland & Ellis, LLP.
Technically, it's an incorporation case, because that was the ground it was decided on under appeal. So, if it gets to the issue of scope, it will probably be after remand and coming back up again. But it is interesting nevertheless.
Heller contains some problematic and self-defeating language. The scope of the 2A, according to Heller, is weapons "in common use." The problem is that the government can regulate/ban weapons to make them NOT in common use, and having done that, those weapons are removed from the protection of the 2A. I call this the circularity problem. And it's something that needs to be addressed before the Heller line implodes on itself before it can effect meaningful change in the law. What we need is a holding that expressly defines common use around prior laws; i.e. common use includes weapons that were in common use prior to government intervention or would be in common use but for government regulation. Without this, the government gets to define the limits of its own power, which is a constitutional absurdity.
What does this have to do with nunchucks? Everything. As I mentioned earlier, the most likely route to the Heller line seemed to be to go after something like an AWB. There is a problem with that strategy, both politically (such a ruling would be controversial and contentious) and legally (Justice Thomas inserted some language which might have been an endorsement of bans on M-16s). Enter the nunchaku. These are not "especially dangerous" military weapons, nor do they provoke controversy the way so called "assault-weapons" do. That makes them fertile ground for a relatively safe "common use" argument.
Are they in common use? Probably not. But, the facts on the appellate record suggest otherwise. The challenged law prohibiting nunchucks was actually enacted because they had become prevalent, both among gang members and martial arts enthusiasts. The do-gooders got nervous and enacted the ban. So there's that. But, in all likelihood, "common use" will be a national, not local standard ("...being necessary to the security of a free state..." speaks to national security, not local security). Nevertheless, we don't know how "common" is "common." Martial arts enthusiasts around the country could well be common enough. As a generally nonlethal weapon, nunchucks aren't "particularly dangerous" in the meaning of Heller.
Bottom line: arguing about common use for martial arts weapons is a safe, conservative approach to expanding upon the Heller precedent. If the case loses, it would not be likely to reinforce the circularity problem, but to lose on a "safe" ground (not common enough, not related to militia service---yes, Miller is still alive, and this area was referenced in Heller and was the basis for the common use scope---etc. etc.).
No word on whether Chuck Norris plans to file an
amicus brief.
