The Eighth Post (including early December 2018 Updates)
At the trial that was held almost two years ago (January 9-12, 2017; see below for my opening statement), 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 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 decision declining to grant declaratory judgment in my favor without first allowing the defense an opportunity to supplement the record. This included an opportunity for additional briefing by both sides. (My August 24, 2018, brief is here.) On October 1, 2018, the Court sua sponte amended its July 23, 2017, decision and requested responsive letters from each side.
The Court’s October 1, 2018, memorandum and order (10/18 M&O), followed by my November 12, 2018, letter, followed by a corrected copy of the 10/18 M&O (see footnote 1 in my letter for the location of the corrected error within the 10/18 M&O), are compiled as a single pdf document here.
Oral argument was held on Wednesday, December 5, 2018. Judge Chen concluded the appearance by indicating that a decision would be forthcoming by year-end.
James Michael Maloney
Friday, December 7, 2018
Opening statement (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 Castañeda 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.