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.
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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.
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