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#109999 - 07/29/03 12:48 PM Re: Nunchaku illegal in your home?
Sweeney Offline
Member

Registered: 07/10/03
Posts: 342
Loc: New York, USA
Thanks for responding.
[QUOTE]Originally posted by the504mikey:
We allow our citizens to keep firearms in their homes. I have trouble believing that nunchaku or any other martial arts weapon is inherently more dangerous than a rifle or pistol would be. Therefore it seems clear that the local law conflicts with federal law, and as such I would expect the local law to be overturned.[/QUOTE]
Unfortunately, federal law (i.e., the Second Amendment) hasn't yet been applied to limit the states' ability to regulate the possession of arms, whether firearms or not. In the State of NY it's still a crime just to possess a pistol in your own home, even if you acquired it legally before moving here, unless you get a NY pistol permit first, and these can and frequently are denied arbitrarily with no hope of the applicant getting review of the decision. (It is because of the Second Amendment basis for my challenge that I sought some funding from the NRA, but they turned me down, probably because my case involves nunchaku, not firearms.)
[QUOTE]I am curious... if the district attorney in New York has decided not to prosecute you, then do you still have a grievance to file in federal court? It seems like a judge might just decide to send you home until such time as you are formally charged... By the way, if it isn't obvious, I am not a lawyer, so please forgive any errors arising out of my ignorance-- please do correct them, though, so I can learn more about our system.[/QUOTE]

Well, Mr. 504, you may not be a lawyer, but you've asked an excellent law-student question, which relates to what is called "standing": whether a given person is affected directly enough by a law to challenge it. I have argued that, having been prosecuted once, I must now choose between giving up my nunchaku or risking being prosecuted again. I believe this will give me standing, but the Attorney General still may challenge it in a motion. We'll see what happens. The wheels of justice turn slowly. (Interestingly, if I had tried to bring my federal case while the state criminal charges were pending, the federal court would have abstained from review while the state criminal case was pending. So it would be unfair to deny me the opportunity to litigate it now, or you'd have a damned-if-you-do/damned-if-you-don't situation.)

I will try to address all queries posted on this forum.

Jim Maloney

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#110000 - 07/29/03 02:53 PM Re: Nunchaku illegal in your home?
the504mikey Offline
Enthusiast

Registered: 06/19/03
Posts: 790
Loc: Louisiana, United States
Mr. Maloney,

Thanks for taking the time to answer my questions and for clarifying some misconceptions I had about 2nd Amendment rights. I can understand the federal court refusing to get involved while your case was still pending-- they should, I think, always give the lower court a chance to "do the right thing" without prompting from above.

As answers often do, yours led me to have some more questions [IMG]http://www.fightingarts.com/forums/ubb/smile.gif[/IMG].

Can a municipality or other local/state government ban firearm possession outright without running afoul of the Constitution?

It seems to me that NY could argue that it is not illegal to own a gun in your home, it's just that you have to follow certain procedures in order to do so. It would be up to the courts to decide that the procedures were in effect a ban because of the way they are set up or implemented.

This brings me to my second question, is there provision for licensing your nunchaku, as there is presumably for other "deadly weapons", or are nunchaku singled out with their own statute?

I think it's ludicrous that they can attempt to outlaw what is essentially a glorified stick. But then I am generally in favor of an armed populace, which I understand not everyone thinks is such a great idea...

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#110001 - 07/29/03 03:42 PM Re: Nunchaku illegal in your home?
Sweeney Offline
Member

Registered: 07/10/03
Posts: 342
Loc: New York, USA
Before addressing your questions, I'd like to post a poem that was written by a reporter friend of mine in Seattle within hours of my informing him about the case. It very cleverly addresses some of the best legal arguments:

[QUOTE]If nunchaku's illegal, pray,
Are bolas far behind?
For if your balls are joined by thong,
What would the courts then find?
Sticks and stones can break your bones
But they are not illegal...
Until they're joined by chains or cords;
A point you might inveigle(?)
If sticks are not cojoined as such,
Would nunchak'/single count as much?
So what's a nunchak' guy to do...
Make singles of his nunchaku?!
And if it please the court, pray tell,
Whose basket now has gone to Hell?
Before you ridicule this poem,
Consider what's inside your home
The knife you use to carve your meat
Is weaponry upon the street,
But what I have behind my door
Is mine to use there. Furthermore,
What danger do I pose to you
With my own set of nunchaku?
My martial arts are wholly mine
As much as marital arts are thine!
And what a man and woman do
Is far beyond the law's purview
If they are doing it at home --
I rest my case,
And end my poem!

--Anon.[/QUOTE]

As for your questions, yes, the present state of the law is that a complete ban by a state or municipality may survive a Second Amendment-based challenge because the Second Amendment is one of the few provisions of the Bill of Rights that has not yet been held to be applicable to the states ("incorporated," to use the legal jargon). Naturally, such a ban would virtually assure litigation that could change that and lead to a Supreme Court case that incorporates the Second Amendment. Also, many states have provisions in their own constitutions relating to the right to bear arms, so the question of the federal constitutional protection would not matter as much in many states.

As to your second question, the only provisions for licensing in NY, and probably most states, relate to firearms. Nunchaku, shuriken, etc., are all simply banned. The martial arts community, unlike the NRA, has very little political clout.

There's a thread in the "Street Fighting" section here entitled, "Nunchuka--Is there a defence?" that has some commentary about all of this, including some comments I've posted. Look especially for the post by "Presuppositionalist" providing a link to a website maintained by Stephen Halbrook, who is a leading Second Amendment lawyer.

Jim


[This message has been edited by Sweeney (edited 07-29-2003).]

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#110002 - 07/29/03 03:49 PM Re: Nunchaku illegal in your home?
MrVigerous Offline
Former Administrator

Registered: 04/17/01
Posts: 2498
Loc: UK
As an English lawyer, its interesting to see a discussion on the prohibited nature of some articles in some states of the US. I have often considered the following dichotomy ironic. We here in the UK are entitled to possess such items as nunchucks, fighting knives, katana and so on, in our homes and even to transport them in public to places of training, pretty much with impunity unless we start waving them around in the highstreet. However, should we use any of these items in defence of our homes, property and person, the law looks VERY deeply into the legitimacy of our actions. In the US on the other hand, the law is far less concerned with would be burglers, muggers and the like being maimed or killed in the commission of their crimes BUT individual states like to arbitrate over what objects one can have in ones home to do the job. There are clearly faults in the British system which to my mind is too concerned with the rights of criminals. However I find the US system utterly incomprehensible on occassion, where one can legaly own an efficient modern killing device such as a semi-automatic pistol and ritously use it to defend your home BUT should you have a pair of sticks with a bit of rope holding them together in your garage you face incarceration.
HeadlessHorseman - though you are correct in your view that the decision of the legislature in a Democracy is binding on everyone regardless of the stupidity of a law, it is not obligatory to do nothing to amend or seek to amend the law in question. Laws are amended, repealed and simply forgotten about year on year.

Regds
Mr V

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#110003 - 07/29/03 05:43 PM Re: Nunchaku illegal in your home?
Sweeney Offline
Member

Registered: 07/10/03
Posts: 342
Loc: New York, USA
[QUOTE]Originally posted by MrVigerous:
...I find the US system utterly incomprehensible on occasion...[/QUOTE]

So do I! And the more I learn about it in theory, the less comprehensible it seems in practice. I'm close to getting my second law degree (LL.M.), by which time I should be utterly confused!

There is a joke among American lawyers about the criminal justice system: sometimes it forgets its middle name!

Seriously, a big problem here is the fact that so many "possession" crimes exist. Although they are rarely prosecuted, they are effective tools for abuse by factions of government against "targeted" individuals. When my home was ransacked in 2000 without a warrant by the police who seized my nunchaku and many other items, including papers, I had another case against a multi-billion-dollar state university system that I believed was corrupt on its way to a federal appellate court. Was I "targeted?" Well, the whole story is a bit more complex than I could or would set forth here, but ... maybe.

As for English law, I'm sure you're aware that since England incorporated the European Convention on Human Rights into domestic law a few years ago, the power of English judges to strike down acts of Parliament has increased manifold, at least in theory. I sometimes wonder if the capacity of the judiciary to declare laws unconstitutional is a mixed blessing, in that it inevitably leads to more "pushing of the limits" by the legislature in enacting laws of questionable constitutionality. Maybe the French, with their pre-enactment review by the Conseil Constitutionel and their unwavering respect for the sanctity of "loi" once it has been enacted, have the best system of all. In any event, I must say that I am getting pretty fed up with the absolute uncertainty and variability of the application of the American Constitution in our courts. So England, France, and the rest of the EU nations are all looking pretty good to me right now. That having been said, I remain a patriot, and more than twenty years ago took an oath to defend the American Constitution "against all enemies, foreign and domestic."

Unfortunately, most of them are domestic.

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#110004 - 07/29/03 07:50 PM Re: Nunchaku illegal in your home?
MrVigerous Offline
Former Administrator

Registered: 04/17/01
Posts: 2498
Loc: UK
I would suggest that the problem with the US model is that you simply have too many layers of legislature and judiciary. Legislature at many levels from local to state to federal pass contradictory laws and judicary at all levels is asked to interpret them based on various degrees of compatibility, forced or optional compliance and of course the Constitution. I find it bizzare that after so many years, the Constituition is not directly applicable to the individual states in its entirety. They have the capacity to ammend it with a large majority so why not become beholdent to it. One of the guiding principals of EU law is that it is "supreme" and overides conflicting laws of the member states. The principals of direct and indirect effect oblige states and individuals to comply with and to read their laws in line with EU law.
Frankly the most telling similarity between the EU model and the US federal model is that the constituent members all still want a certain amount of individual autonomy. This can be said to be reasonable in respect of ancient sovereign nation states such as the UK and France. It seems somewhat petulent for the relatively young US states that have never really been sovereign to demand similar status. It seems to me that it really is about time the US became one country and all complied with the same overiding federal law. Then again I never have understood the attraction of a federal system anyway.

Regds
Mr V

[This message has been edited by MrVigerous (edited 07-29-2003).]

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#110005 - 07/29/03 08:50 PM Re: Nunchaku illegal in your home?
Sweeney Offline
Member

Registered: 07/10/03
Posts: 342
Loc: New York, USA
Mr. V:

Interestingly, the EU Treaties don't provide for supremacy of Union law over member state law, but the ECJ said it was logically necessary in a case called Costa v. ENEL, so it's been the (largely) accepted norm ever since. Yet in the US, where the Federal Constitution has an express Supremacy Clause, the Supreme Court early on (Barron v. Baltimore) said that the Bill of Rights did not apply to the states. So, gaining that application via the post-Civil-War 14th Amendment has been a tedious step-by-step process that notably has so far omitted the Second Amendment. Conclusion: Constitutions and treaties are just words and, as my grandma always told me, actions speak louder than words. As for the benefits of a federal as opposed to a unitary system, well, you could check out Justice Kennedy's concurring opinion in United States v. Lopez (1995) at:
http://supct.law.cornell.edu/supct/html/93-1260.ZO.html

Basically, what he says is that having two governments duke it out protects the rights of the citizen. There is some hope that this may be true, I suppose, but I think the Germany-EU "Solange" dialog is a better illustration of an application of that theory than anything that has happened in the US in recent years. Kennedy attributes the origin of federalism to the US, and he may be right, but I would say that DUAL SOVEREIGNTY goes back to Italy in the first millennium, where the papacy and the secular governments often fought it out, sometimes creating opportunities for clever Macchiavellian types to pit the one against the other and maybe even achieve a noble result from baser motives. So I call the technique of pitting one sovereign against the other "la via duesovranesca"...

Anyway, this is getting way too scholarly. My major in my LL.M. program is Federalism & Federal Systems (can't ya tell?), but the semester doesn't start for another month, so I'd better give my brain a rest and go work out with the 'chucks. Oops, can't do that, 'cause I don't have any in the house 'cause they're...

ILLEGAL!

Yours,

The Outlaw Laywer
James M. Maloney
aka Sweeney http://homepages.nyu.edu/~jmm257

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#110006 - 08/05/03 03:15 PM Re: Nunchaku illegal in your home?
HeadlessHorseman Offline
Member

Registered: 07/25/03
Posts: 36
Loc: Sleepy Hollow, NY, USA
[QUOTE]Originally posted by MrVigerous:
HeadlessHorseman - though you are correct in your view that the decision of the legislature in a Democracy is binding on everyone regardless of the stupidity of a law, it is not obligatory to do nothing to amend or seek to amend the law in question. Laws are amended, repealed and simply forgotten about year on year.[/QUOTE]

If you read paragarphs 5 thru 8 of the complaint provided by "Sweeney" himself(http://homepages.nyu.edu/~jmm257/nunchakucomp.html ) in one of his other posts, you will see that the law was not "simply forgotten about" and that "Sweeney" himself was charged with violating it! Apparently the system showed him some mercy, but if he is foolish enough to acquire another nunchaku he should no doubt be convicted and incarcerated like any other criminal.

[This message has been edited by HeadlessHorseman (edited 08-05-2003).]

[This message has been edited by HeadlessHorseman (edited 08-05-2003).]

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#110007 - 08/05/03 04:15 PM Re: Nunchaku illegal in your home?
Sweeney Offline
Member

Registered: 07/10/03
Posts: 342
Loc: New York, USA
I think Mr. V was pointing out that I have the right to challenge the law. And (hypothetically speaking, of course) if I were to continue to work out with nunchaku in my home in the meantime, that would be a case of civil disobedience, wouldn't it? It still strikes me as ironic that in the "land of the free" someone can be locked up for a year just for possessing two sticks joined by a cord in the privacy of his own home.

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#110008 - 08/05/03 04:32 PM Re: Nunchaku illegal in your home?
MrVigerous Offline
Former Administrator

Registered: 04/17/01
Posts: 2498
Loc: UK
Sweeney is correct in his interpretation of the point I was trying to make. HeadlessHorseman - you seem to take the view that once an issue is legislated upon, we should all go:

"...well that's that then, I'd better just live with it or risk sanction"

Indeed you do have to live with it whilst the law is in force, however the point I made was that whilst one is under a duty to comply with a law, one is still able and entitled to try to have it changed or amended.

Regds
Mr V

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