Julio Gonzalez, M.D., J.D.
In places like New York City, oppressive municipalities have gotten away with banning a variety of self-defense weapons under the guise of them not being covered by the Second Amendment to the Constitution. As the arguments go, these municipalities have important reasons, usually centered on the public's protection against gang violence, compelling the need to prohibit possession of these self-defense weapons. As a result, things like nunchucks, Chinese stars, Chinese sticks, stun guns, and even pepper spray are prohibited items. In New York, for example, the mere possession of mace is illegal.
But things may be changing thanks to the Hellerdecision. In District of Columbia v. Heller, a 2008 decision, the Supreme Court struck down a Washington, D.C., ordnance prohibiting gun owners from keeping unlocked and loaded guns inside their homes. The decision was monumental for gun rights advocates because, among other statements, the Supreme Court said, for the first time in American jurisprudence, that one of the purposes of keeping and bearing arms is self-defense. Employing a detailed analysis of the admittedly awkward language in the Second Amendment, Justice Antonin Scalia, the author of the majority opinion, explained that the First Congress did not merely have protections related to the maintenance of a well-regulated militia in mind when they passed the provision. The protections, Scalia explained, also related to essential right of individuals to defend themselves.
Now, it appears that "the right to keep and bear arms" does not exclusively apply to firearms. In a recent case brought in federal court by a New York attorney expert in martial arts who was frustrated by not being able to pass his weapons to his kids, the trial judge shot down the city's prohibition against the manufacture, purchase, and possession of switchblade knives, gravity knives, pilum ballistic knives, metal knuckle knives, billy, blackjack, bludgeons, plastic knuckles, metal knuckles, Kung Fu stars, chuka sticks, sandbags, sandclubs or slungshots. In her order, the judge cited the language in Helleras controlling regarding the attorney's right to possess these weapons. The judge also borrowed language from a recently decided Supreme Court case, Caetano v. Massachusetts.
In Caetano, a woman who had been accosted by her ex-boyfriend despite a restraining order pulled out a stun gun when he attacked her, at night, in a public park, even though the city prohibited its possession and use. The Court upheld Caetano's right to possess and deploy the stun gun as a protection afforded to her in the Second Amendment. According to the Court, the mere fact that such weapons may be dangerous was insufficient reason to uphold the ban. “If Hellertells us anything," the Court opined, "it is that [weapons] cannot be categorically prohibited just because they are dangerous,” since the “relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.”
In short, there are some common threads weaving through these cases. First, the Second Amendment is no longer the exclusively applicable to firearms and guns. And second, and equally as important, the Court's new outlook on these rights means the natural chipping away at the municipalities' powers to keep law abiding citizens from possessing and using them.
And for that, we have the late Justice Scalia to thank.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and served in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.
Julio Gonzalez, M.D., J.D.
Dr. Gonzalez is an orthopedic surgeon and lawyer serving as State Representative for South Sarasota County in Florida. He is the author of The Federalist Pages