The Eighth Post (Summer 2018 Spin)

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At the trial that was held more than a year ago (January 9-12, 2017), I offered expert testimony from Kevin Orcutt and Chris Pellitteri, plus sales statistics from a martial-arts-equipment supplier, all in an attempt to show that the nunchaku is “commonly used for lawful purposes,” including police use, self-defense, and recreational martial-arts use. See my Proposed Findings of Fact and Conclusions of Law submitted March 2, 2017. On July 23, 2017, the Court issued a ruling declining to grant declaratory judgment in my favor without first allowing the defense an opportunity to supplement the record. This will include an opportunity for the defense to offer additional evidence to rebut the presumption in favor of Second Amendment protection that, per the Judges ruling, now exists under current case law. At a telephone conference held September 27, 2017, it was agreed that the trial would be continued starting June 4, 2018.  Based on the proposed joint pretrial order that was submitted on May 23, 2018, there will be no additional witnesses, and the new exhibits will be submitted electronically with courtesy copies in paper form submitted with the forthcoming briefs, which are due July 20 (Defendant), August 10 (Plaintiff), and August 24 (Defendant in reply).  Oral argument is scheduled for 10:00 a.m. on Friday, September 7, 2018, in Courtroom 4F at 225 Cadman Plaza East, Brooklyn.

Jim Maloney
July 8, 2018

Opening statement by Jim Maloney (January 9, 2017)

The trial we are about to begin concerns the right of the people to keep and bear arms. As recently as ten years ago, the Supreme Court still had not given meaning and content to the provision in the Constitution that sets forth that right, although the Second Amendment has been part of our Constitution since 1791. Today, the balance between the exercise of that right and the recalcitrant plague of gun violence in America is finally beginning to be worked out. It will probably take decades for the courts and the legislatures to strike that balance in a way that protects us all from such horrific incidents as mass shootings at schools, movie theaters, and airports, while at the same time guaranteeing that the Second Amendment, which was first applied to the states only 6½ years ago in McDonald v. Chicago, is given real meaning and substance. Actually, we may never get it right, but I try to be an optimist, because I believe that the “path of the common law,” as Justice Oliver Wendell Holmes Jr. put it, is also, as Carlos CastaƱeda put it through his character Don Juan, a “path with heart.” Nothing in this case has anything to do with guns, or with carrying weapons on the street, or with mass shootings at schools, movie theaters, or airports. And yet, this case has everything to do with all of those things, because the path of the common law is also in some ways like the path of a particle in a quantum physics experiment: it travels in many different directions, all at once, because precedents are often applied in ways that aren’t always foreseen, or even reasonably foreseeable, when they’re made. So there is actually a lot more at stake here than might meet the eye at first glance. Can we get it right? Well, we can try. Right now the only question before us is whether the nunchaku, an ancient martial arts weapon, is commonly used for lawful purposes today. In a few years, the key Second Amendment questions may be somewhat different, so I ask the Court to be patient if it appears that at times I am straying from the path the Court has defined in order to establish a record that may become relevant down the road. And I also ask the Court to remember that the relief I’m seeking here, and have been seeking for nearly 14 years now, is real, and personal, separate and apart from all those big-picture considerations I’ve just described. But I have a duty, I think, to try to address both. Is it possible for me, one human being, acting alone, to fulfill that duty? No.