Maloney v. Singas

Filing 210

ORDER: For the reasons stated in the attached, the Court sua sponte amends its July 23, 2017 order to make clear that Defendant Nassau County's burden is not an either-or test, but rather, Defendant must prove, at a minimum, that nunchakus are "not typically possessed by law-abiding citizens for lawful purposes", and not simply that they are not in common use. In light of its Amended Order, the parties may submit supplemental letters, no longer than five pages, by October 22, 2018, addressing whether Defendant has met its burden that nunchakus are "not typically possessed by law-abiding citizens for lawful purposes". The Court shall hold oral argument on December 5, 2018 at 11:00 a.m. in Courtroom 4F North. Ordered by Judge Pamela K. Chen on 10/1/2018. (Hess, Alexandra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JAMES M. MALONEY,
Plaintiff,
-against-

MEMORANDUM & ORDER
03-CV-786 (PKC)(AYS)

MADELINE SINGAS, in her official capacity
as Acting District Attorney of Nassau County,
Defendant.
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PAMELA K. CHEN, United States District Judge:
On July 23, 2017, the Court issued an order stating, inter alia, that “in keeping with the
Second Circuit’s reading of [District of Columbia v. Heller, 554 U.S. 570 (2008)] a presumption
in favor of Second Amendment protection applies, and the government, i.e., Nassau County, has
the burden of producing evidence that nunchakus are not ‘in common use’ or not ‘typically
possessed by law-abiding citizens for lawful purposes.’” (Dkt. 188, at 4 (quoting New York State
Rifle & Pistol Ass’n, Inc. v. Cuomo (“NYSRPA”), 804 F.3d 242, 257 n.73 (2d Cir. 2015) (emphasis
added).)1 The Court now sua sponte amends its prior order to make clear that Defendant Nassau
County’s burden is not an either-or test, but rather, Defendant must prove, at a minimum, that
nunchakus are “not typically possessed by law-abiding citizens for lawful purposes”, and not
simply that they are not in common use. Indeed, whether nunchakus are in common use is
ultimately irrelevant.

1

See also Kolbe v. Hogan, 849 F.3d 114, 131 n.9 (4th Cir.), cert. denied, 138 S. Ct. 469
(2017) (“Although the Heller Court invoked Blackstone for the proposition that ‘dangerous and
unusual’ weapons have historically been prohibited, Blackstone referred to the crime of carrying
‘dangerous or unusual weapons.’”) (emphasis in original).

In its prior order, the Court focused on NYSRPA’s statement that the burden of proof
regarding the constitutionality of the nunchakus ban was on Defendant and not Plaintiff. (Dkt.
188.) However, after delving into all of the available Second Amendment jurisprudence case law,
much of which is outside of this Circuit and much of which is opaque and contradictory, the Court
believes that many courts, including the Second Circuit in NYSRPA, have ultimately concluded
that the issue of “common use” is irrelevant to the Court’s analysis as to whether a weapon is
outside of the Second Amendment’s protection, and that the only relevant inquiry is whether the
weapon at issue is typically possessed for a lawful purpose.
The overwhelming majority of courts that have addressed Second Amendment challenges
have found that the weapon’s “typical possession” for an unlawful purpose, in itself, is sufficient
to deny Second Amendment protection. See, e.g., Kolbe, 849 F.3d at 131 (noting that even if the
majority accepted the dissent’s argument that assault weapons are popular, the Court can still “stop
those weapons from being used again and again to perpetrate mass slaughters”); Friedman v. City
of Highland Park, Illinois, 784 F.3d 406, 408-09 (7th Cir. 2015) (noting that “during Prohibition
the Thompson submachine gun (the ‘Tommy gun’) was all too common in Chicago, but that
popularity didn’t give it a constitutional immunity from the federal prohibition enacted in 1934”);
United States v. Hatfield, 376 F. App’x 706, 707 (9th Cir. 2010) (holding that “modern sawed-off
shotguns are not typically possessed for lawful purposes” and, therefore, are not entitled to Second
Amendment protection); United States v. Marzzarella, 614 F.3d 85, 95 (3d Cir. 2010) (“It is
arguably possible to extend the exception for dangerous and unusual weapons to cover unmarked
firearms. . . . Because a firearm with a serial number is equally effective as a firearm without one,
there would appear to be no compelling reason why a law-abiding citizen would prefer an
unmarked firearm. These weapons would then have value primarily for persons seeking to use

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them for illicit purposes.”); United States v. Tagg, 572 F.3d 1320, 1326 & n.5 (11th Cir. 2009)
(“[W]e conclude that the pipe bombs at issue were not protected by the Second Amendment.
Unlike the handguns in Heller, pipe bombs are not typically possessed by law-abiding citizens for
lawful purposes.”) (collecting cases); Worman v. Healey, 293 F. Supp. 3d 251, 265-66 (D. Mass.
2018) (holding that “AR-15-type rifles . . . fall outside the scope of the Second Amendment” even
though they are “an extraordinarily popular firearm” because “[t]he features of a military style rifle
are designed and intended to be particularly suitable for combat rather than sporting applications”)
(citation and internal quotation marks omitted); United States v. Barbeau, No. 15-CR-391 (RAJ),
2016 WL 1046093, at *3 (W.D. Wash. Mar. 16, 2016) (“[R]estrictions on short-barreled weapons
are permissible, particularly given that Congress specifically found that short-barreled rifles are
primarily weapons of war and have no appropriate sporting use or use for personal protection.”)
(citation and internal quotation marks omitted).
This conclusion is supported by NYSRPA, in which the Second Circuit found that the
assault weapons and large-capacity magazines at issue were “in common use”, but stated that it
“must next determine whether assault weapons and large-capacity magazines are ‘typically
possessed by law-abiding citizens for lawful purposes.’” 804 F.3d at 255-56 (emphasis added).
This reasoning makes clear that a weapon being “in common use” is not enough to deny Second
Amendment protection; otherwise, the NYSRPA court could have concluded after its “common
use” analysis that the weapons at issue were protected by the Second Amendment. This reasoning
also implies, by contrast, that a weapon’s “typical possession” for an unlawful purpose, standing
alone, can be enough to undermine Second Amendment protection.2 Moreover, such reasoning is

2

In his concurrence in Caetano v. Massachusetts, Justice Alito stated that the test for
whether a weapon falls within the scope of the Second Amendment is “a conjunctive test: A
weapon may not be banned unless it is both dangerous and unusual.” 136 S. Ct. 1027, 1031 (2016)
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consistent with the Second Amendment’s emphasis on, and “the historical understanding” that,
“the right to keep and bear arms . . . is for lawful purposes.” United States v. Greeno, 679 F.3d
510, 520 (6th Cir. 2012) (emphasis in original).3
In addition, the Court has not identified a single case in which a court has found that a
bearable arm is outside of the scope of the Second Amendment simply because it is not in
“common use”. See, e.g., Friedman, 784 F.3d at 409 (“[R]elying on how common a weapon is at
the time of litigation would be circular to boot. [For example,] [m]achine guns aren’t commonly
owned for lawful purposes today because they are illegal. . . . Yet it would be absurd to say that
the reason why a particular weapon can be banned is that there is a statute banning it, so that it
isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.”);

(Alito, J., concurring) (emphasis in original). In NYSRPA, however, which preceded Caetano, the
Second Circuit only considered the conjunctive test of whether the weapons were “dangerous and
unusual” in the context of its “typical possession” analysis. 804 F.3d at 256 (finding that the Court
“must also consider more broadly whether the weapon is ‘dangerous and unusual’ in the hands of
law-abiding civilians”). By contrast, some courts have used “unusual” as equivalent to “in
common use”, and “dangerous” as shorthand for “typical possession.” See, e.g., Fyock v.
Sunnyvale, 779 F.3d 991 (9th Cir. 2015).
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Some courts, however, have implied that the party bearing the burden must demonstrate
both that the weapon is not in “common use” and its “typical possession” is for an unlawful
purpose. See, e.g., Hollis v. Lynch, 827 F.3d 436, 447-51 (5th Cir. 2016) (finding that machineguns
are “dangerous”, and then proceeding to analyze whether they are “usual”); Fyock v. Sunnyvale,
779 F.3d 991, 998 (9th Cir. 2015) (finding regulations restricting possession of certain types of
large-capacity magazines burdened conduct falling within the scope of the Second Amendment
where the government demonstrated that the magazines were “dangerous” but not “unusual”);
United States v. Henry, 688 F.3d 637, 640 (9th Cir. 2012) (holding that machine gun possession is
not entitled to Second Amendment protection because it is “likely to cause serious bodily harm”
and “unusual because . . . [o]utside of a few government-related uses, machine guns largely exist
on the black market”); United States v. McCartney, 357 F. App’x 73, 76 (9th Cir. 2009) (“The
weapons involved in this case are dangerous and unusual [and therefore, not protected by the
Second Amendment]. [Defendant’s] own expert testified that the machine gun is a dangerous
weapon in light of the fact that it devastated entire populations in World War I. And the possession
of a machine gun by a private citizen is quite unusual in the United States.”) (internal quotation
marks omitted).
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Fyock v. City of Sunnyvale, 25 F. Supp. 3d 1267, 1276 (N.D. Cal. 2014), aff’d sub nom. Fyock v.
Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (“The fact that few people will require a particular firearm
to effectively defend themselves . . . should be celebrated, and not seen as a reason to except [them]
from Second Amendment protection.”). This principle comports with the Second Circuit’s finding
in NYSRPA that “the Second Amendment extends, prima facie, to all instruments that constitute
bearable arms, not just to a small subset.” 804 F.3d at 255-56 (citation and internal quotation
marks omitted) (emphasis in original).
Thus, the Court clarifies the applicable burden of proof and relevant test in this matter: it
will not be enough for Defendant Nassau County to simply prove that nunchakus are “unusual” in
order to rebut the prima facie presumption of Second Amendment protection; Defendant must
show that the “typical possession” of nunchakus is for an unlawful purpose.
CONCLUSION
In light of its Amended Order, the parties may submit supplemental letters, no longer than
five pages, by October 22, 2018, addressing whether Defendant has met its burden that nunchakus
are “not typically possessed by law-abiding citizens for lawful purposes”. The Court shall hold
oral argument on December 5, 2018 at 11:00 a.m. in Courtroom 4F North.
SO ORDERED.

/s/Pamela K. Chen
PAMELA K. CHEN
United States District Judge

Dated: Brooklyn, New York
October 1, 2018

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