Most Read
Image 01 Image 02 Image 03

California’s “Billy Club” Ban is Anachronistic and Unconstitutional

California’s “Billy Club” Ban is Anachronistic and Unconstitutional

One would think that anti-gun politicians would applaud a person using less-than-lethal clubs as opposed to firearms.  But alas, therein lies the truth about gun-control. It’s not about “gun” control. It’s about arms-control.

Americans have a natural, constitutionally protected right to choose the self-defense tools they deem necessary, whether that’s a firearm or some other form of weaponry. “Arms,” as in “to keep and bear arms,” meant something broader than just firearms to those who wrote and ratified the Second Amendment to the U.S. Constitution, even if that tends to be forgotten by too many contemporaries. That term encompassed bladed weapons, like knives, swords, hatchets, bayonets, and tomahawks, plus even more primitive, club-like arms that were in use on that era.

Unfortunately, the proponents of gun control are also eager to regulate these other kinds of “arms” as well.

In addition to restricting Californians’ ability to own some of the most commonly owned firearms in the United States—and banning certain types of knives—California completely bans the possession of certain club-type weapons, including so-called “billy clubs,” exempting only police and certain security guards from owning them. This is an unconstitutional infringement of the Second Amendment. But the district court refused to even evaluate the law because, in the Ninth Circuit, courts automatically consider any “longstanding” law to be constitutional.  The Ninth Circuit claims that they are applying District of Columbia v. Heller, the last major gun rights case tackled by the U.S. Supreme Court, by but in reality, Heller implies that certain “longstanding” regulations may be presumed to be constitutional.  The presumption must be rebuttable.  Without allowing individuals to seek to prove even longstanding regulations are not constitutional the Ninth Circuit may inadvertently rubber-stamp longstanding infringements on people’s rights, rather than uphold constitutional regulations.

Now two military veterans, Russell Fouts and Tan Miguel Tolentino, are suing California’s attorney general to challenge this unconstitutionally “longstanding” ban.  MSLF’s Center to Keep and Bear Arms has filed a brief supporting Russell and Tan, arguing that the mere longevity of such a law is no guarantor of its constitutionality or legitimacy.

Back in 1917, California enacted a ban on “billy clubs,” and other blunt instruments, because the state solely associated them with criminals and thugs—not because they were particularly dangerous or worrisome.

California passed its prohibition to “condemn weapons common to the criminal’s arsenal.” But the scope of the ban includes not only items like police batons, but also ““ordinarily harmless objects when the circumstances of possession demonstrate an immediate atmosphere of danger.” California courts have interpreted this to include household items like baseball bats and table legs, when possessed with the wrong intent.

But constitutional principles don’t depend on California’s condemnations, nor are they subject to value judgments.  And yet, that’s exactly how federal courts in the Ninth Circuit have treated California’s ban and similar so-called “longstanding regulations.”

First and foremost, it is clear that “billy clubs” and other blunt instruments, are “Arms” that are protected under the Second Amendment.

When drafting our Constitution, the Framers were highly particular with their choice of words. The Framers could have written “the right to keep and bear muskets shall not be infringed.” Or the right to keep and bear swords, daggers, and knives.

But the Framers didn’t. They wrote that “the right of the people to keep and bear Arms shall not be infringed,” intending to protect all manner of Arms available to the People of the United States.

What, then, are Arms? Understanding that rights are enshrined with the meaning they had when they were adopted, the Supreme Court interprets the word “Arms” based, in part, on a Founding era dictionary: arms are “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”

Surely, this includes club-like weapons.

Moreover, the Founders of our country were well aware of the use of blunt instruments as Arms. Clubs, sticks, and canes played an important role in the Boston Massacre, being borne by the residents of Boston in their uprising against British Redcoats. Robert Paine, in his prosecution of the British Redcoats that killed 5 Bostonians that day, specifically noted that the colonists had “found it necessary to arm themselves with heavy Walking Sticks or Weapons of Defense.”  John Adams, in defending the British Soldiers, even admitted that Bostonians had the right to be armed in such a way for their own defense against the soldiers.

Samuel Adams, one of the more famous of our Founding Fathers, wrote in response to the Massacre, that Crispus Attucks, a free Black man killed in the massacre, had a “right, by law of the land, to carry a stick for his own and his neighbor’s defence.”

California, however, believes their policy choice can override the text of the Constitution. One would think that anti-gun politicians would applaud a person using less-than-lethal clubs as opposed to firearms.  But alas, therein lies the truth about gun-control. It’s not about “gun” control. It’s about arms-control.

Even worse than the court’s sign-off on California’s infringement of Second Amendment protected rights, however, is the court’s reasoning for doing so.

Relying on a single sentence and footnote from the Supreme Court’s landmark decision in D.C. v. Heller, a district court upheld California’s prohibition solely because it is “longstanding.” Upon finding that a regulation is longstanding, according to the Ninth Circuit, the court must end its analysis and conclude that the regulation is constitutional.

In other words, the Ninth Circuit treats “old” as “constitutional.” This is completely inconsistent with Supreme Court precedent.

The Supreme Court in Heller identified a set of presumptively lawful longstanding regulatory measures.  That is, those regulations are presumed to be constitutional, but that presumption must be rebuttable.

The Center to Keep and Bear Arms filed an amicus curiae brief with the Ninth Circuit arguing just this point in the case Fouts v. Bonta—challenging California’s “billy club” ban.  In our brief, we demonstrated that modern and Founding Era dictionaries, other uses of presumption in the legal world, and indeed, even the Supreme Court in the context of other rights, all agree the presumptions such as these must be subject to rebuttal.

Despite this, the Ninth Circuit treats the existence of a longstanding regulation as a conclusion of constitutionality, rather than a presumption.

Imagine if courts treated other laws this way—that if a law has a historic pedigree, it is de facto constitutional. Women and minorities were denied their natural rights during our early American history—should these laws have been considered conclusively constitutional?  What about slavery, which was legal at the time of our Founding?

Of course, the answer is emphatically no. But that is exactly how the Ninth Circuit presently considers the rights protected by the Second Amendment—those rights can be infringed upon if the infringement is a century old.

Not only is this an absurd conclusion, it subjects the People to continued and unrelenting infringement of their rights without any hope of legal recourse in the Ninth Circuit.  Which is why we are urging the Circuit to change course here.

Editor’s note 4:20 p.m. Eastern: This article was updated to note that California law also restricts some commonly owned guns and knives, and to correct the hyperlink to the California law banning clubs.

——————————–

Cody J. Wisniewski (@TheWizardofLawz) is the director of Mountain States Legal Foundation’s Center to Keep and Bear Arms and the author of an amicus curiae brief in the case Fouts v. Bonta. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions.  James Donovan is a legal fellow with the Center to Keep and Bear Arms.

DONATE

Donations tax deductible
to the full extent allowed by law.

Comments

If you are a law abiding citizen the only weapon you are allowed to carry is a pillow. If you meet someone who is not law abiding they will beat you up and perhaps kill you using any weapons they desire. They will of course be harshly punished by up to 30 days probation.

Will never understand what part of unconstitutional a state law can be.
Just outlaw the whole 2nd Amendment and call it a day if you want.

The State of California does not accept the Federal 2nd Amendment right.

See it would be easy

    Skip in reply to Skip. | December 18, 2021 at 12:56 pm

    Trying to prod them into the confrontation Leftists seem to be asking for.

      scooterjay in reply to Skip. | December 18, 2021 at 1:52 pm

      Absolutely. Poke something into an action to be used against them. Now is not the time to fight, but instead to sit tight.

    Milhouse in reply to Skip. | December 18, 2021 at 10:07 pm

    No, not even the leftist justices could let a state get away with that. I mean, NY and NJ have effectively been saying that for over a century, but they haven’t been saying it out loud. If they did the courts would be forced to act against them.

The ‘long-standing’ = constitutional argument seems to falter when one notes that prior to Heller and McDonald the incorporation of the 2nd amendment upon States was unresolved. Once incorporation was clear then not only would the clock reset for arguments about long-standing statutes but also whether the statutes are constitutional at all under Heller and McDonald.

    henrybowman in reply to CommoChief. | December 18, 2021 at 3:08 pm

    Furthermore, the “longstanding” issue can sneak in the back door if you’re not careful. Heller went on about allowing weapons that are “in common use” to be available, and mentioned that since fully automatic weapons are not in common use, a ban on them is probably constitutional. This entirely overlooked the fact that the very reason these weapons are not in common use is that the federal government all but banned them in 1934 and further in 1986. The government cannot unconstitutionally ban something for decades, then have the ban adjudged constitutional because it survived a long time. That’s not how “constitutional” works.

    Until just two years ago, it was illegal in Arizona to possess nunchucks. New York, the same. Skinny is that the legislators got spooked in the ’80s, when chop-socky movies got really trendy, and all their knees jerked to ban stuff.

    State weapons laws are a mess. Until I moved out to Arizona, I lived in three separate states where any sort of spring-assisted knife (“switchblade”) was illegal to own. Since we moved out here, that’s all my wife and I carry. (Got her a set of four in pretty colors for Christmas a couple years back, one of the more appreciated gifts on my life list.)

    An armed person is a citizen. An unarmed person is a slave.

      henrybowman in reply to henrybowman. | December 19, 2021 at 9:43 am

      Actually, I blew one part of my argument:
      “The government cannot unconstitutionally ban something for decades, then have the ban adjudged constitutional because the object is now not in common use.“

    The entire problem with the 9th Circuit is their misunderstanding about long standing law. The 2nd Amendment in the Bill of Rights of The United States Constitution says, and I quote, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” That was 1789. Cali wasn’t a state until 1850, so nothing in their law can supercede it. Besides, what part of “shall not be infringed” can’t they seem to understand?

      Kevin, they don’t ‘misunderstand’ anything. Don’t misundestand them.

      Milhouse in reply to Kevin. | December 18, 2021 at 10:05 pm

      No, you misunderstand. The “longstanding law” language isn’t from 1789, it’s from 2008. By 2008 CA’s laws were indeed longstanding. The misunderstanding is about the word “presumed”. Also, that language is dicta.

      In any case, the date of a state’s admission isn’t relevant. The constitution means the same thing in Hawaii as it does in Delaware. And as it does in non-states such as D. C., Guam, or Puerto Rico.

        DaveGinOly in reply to Milhouse. | December 19, 2021 at 10:57 pm

        The language of the Constitution is hardly necessary – the Constitution isn’t the source of the right. The 2nd Amendment was meant only as a guarantee that government had no authority over privately-held weapons of war (the definition of the term “arms” at the time the amendment was written).

        I urge everyone to read the preamble to the Bill of Rights. It will inform you that the bar to government intrusions into your rights is not found in the BoR, it’s in the lack of enumerated authority in the Constitution. The BoR was meant to be a guarantee that the authority granted Congress in the Constitution did not encompass the ability to break into any of our rights by legislation.

        Yes, the existence of the 2nd Amendment has been very useful (because it affixed the right’s existence as a legal fact), but a misunderstanding of what it (and the rest of the BoR) was meant to do and how it was meant to do it leads to suggestions such as “repealing the 2nd Amendment would abolish the right.” This can only be contemplated if one believes the amendment is the right’s source, which it is not.

        (Other nit-wit ideas also spring from the amendment’s existence. For instance, there are people who think that the amendment only protects the rights of militias to have arms, as if a right to arms in militias precludes a right to private arms, and its idiot follow-on that if the amendment doesn’t protect a right to private arms, then the right does not exist. Aside from the language of the 9th Amendment, such a conclusion is plainly illogical-but the authors of the Bill of Rights knew the argument would be made, and that’s why they wrote what became the 9th Amendment.)

Speak softly and carry a big stick!.

Cody Wisniewski: What about slavery, which was legal at the time of our Founding?

Bad example. The Supreme Court upheld slavery and white supremacy in Dred Scott v. Sandford: {Blacks} had for more than a century before been regarded as beings of an inferior order … and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.

Slavery in the U.S. was ended—not by courts reinterpreting the U.S. Constitution—but by the Thirteenth Amendment.

It’s become so incredibly clear that leftists hate the Constitution because it limits the created government. But that – limitation – is the very essence of the document.

There is only one known alternative to limited government, namely, unlimited government. Which should be frightening to the well-meaning. Totalitarians are not well-meaning. They want control and they mean to get it.

While Democrats may profess to abhor the likes of Stalin, Mao, Hitler, they are in truth all comrades.

Weapons do not commit crimes. People commit crimes.

All weapon bans only disarm law abiding citizens as criminals ignore laws and remain armed. Thus, all weapon bans support criminals by making crime safer for the criminals.

“It’s not about “gun” control. It’s about arms-control”

No, it’s about control, everything, all the time. The Leftists know how to live your life better than you.

As if california truckers don’t already have enough regulations to contend with, now they’re going to make tire thumpers illegal

Every trucker I know keeps some type of one handy

Alternatives, baseball bats, golf clubs, 3-4 cell aluminum flashlight, 2-4′ hardwood dowel, rerod.

    I’ve carried a 15″ crescent wrench in my trucks for 50 years

    Obviously for work, but it can double as a deterrent, if needed

    DaveGinOly in reply to JohnSmith100. | December 19, 2021 at 11:00 pm

    Even though I’m a concealed carrier, I also carry an aluminum T-ball bat in my car. It’s just a plain, old, blue bat. I missed an opportunity to by a Hello Kitty T-ball bat. When I went back for it, it was gone. I’ve never seen another.

“It’s not about “gun” control. It’s about arms-control.”

It’s really just about control.

Accessibility by WAH
Send this to a friend