recognizing Second 23 Amendment protection for weapons useful in warfare, unlike a short-barreled shotgun
How later courts described this case
- recognizing Second 23 Amendment protection for weapons useful in warfare, unlike a short-barreled shotgun
- “It is a matter of surprise that 27 these sections of this act, so severe in their penalties, are so generally disregarded in our cities and towns.”
- “Further, a collapsible metal baton is not a specific 24 type of billy.”
- describing an 1886 concealed carrying law including a billy and 1972 amendment removing billy from the list of regulated weapons
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
RUSSELL FOUTS, et al., Case No.: 19-cv-1662-BEN-JLB
12
Plaintiffs,
13 DECISION
v.
14
ROB BONTA, in his official capacity as
15
Attorney General of the State of
16 California,
17 Defendant.
18
I. INTRODUCTION
19
This case is about a California law that makes it a crime to simply possess or carry
20
a billy.1 This case is not about whether California can prohibit or restrict the use or
21
possession of a billy for unlawful purposes. The law does not define a “billy.”
22
23
24 1 California Penal Code § 22210 states:
25 “. . . any person in this state who manufactures or causes to be manufactured, imports into
the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses
26
any leaded cane, or any instrument or weapon of the kind commonly known as a billy,
27 blackjack, sandbag, sandclub, sap, or slungshot, is punishable by imprisonment in a
county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section
28
1 Historically, the short wooden stick that police officers once carried on their beat was
2 known as a billy or billy club.2 The term remains vague today and may encompass a
3 metal baton, a little league bat, a wooden table leg, or a broken golf club shaft, all of
4 which are weapons that could be used for self-defense but are less lethal than a firearm.
5 Americans have an individual right to keep and bear arms, whether firearms or less
6 lethal arms.3 The Second Amendment to the United States Constitution “guarantee[s] the
7 individual right to possess and carry weapons in case of confrontation.”4 The Second
8 Amendment is incorporated against California through the Due Process Clause of the
9 Fourteenth Amendment.5 Some people have made the personal decision to not keep and
10 carry a deadly firearm for self-defense. Instead, they sometimes wish to keep or carry a
11 less lethal arm for self-defense. Plaintiffs are two such citizens.
12 Plaintiffs desire to keep and carry a billy or baton for self-defense, but the State
13 considers that against the best interests of the State and defines it as a serious crime.
14 Perhaps an allegory may illustrate the constitutional defect in the statute Plaintiffs’
15 challenge:
16 A young girl is walking home from school one evening. She is walking through a
17 part of town where robberies, assaults, and rapes have occurred; where youth gangs are
18 known to frequent; and where unrestrained dogs are known to roam.
19 The young girl is wearing a baggy, oversized sweatshirt sometimes associated with
20 gang affiliation. In her hand, she is holding a billy—a baton just like the ones law
21 enforcement officers often carry for their protection. An officer sees her walking and
22 sees that she is in possession of the baton. The officer arrests her for violating California
23
24
25
26
2 See Fouts v. Bonta, 561 F. Supp. 3d 941, 951–53 (S.D. Cal. 2021).
27 3 District of Columbia v. Heller, 554 U.S. 570, 630 (2008).
4 Id. at 606.
28
1 Penal Code § 22210. She is handcuffed, placed in the back of a police car, transported to
2 the police station, booked, fingerprinted, and initiated into the juvenile court system.
3 Although there is no evidence that she has ever struck or threatened to strike
4 anyone with the baton or that she is in danger of hurting herself with it, her mere
5 possession of it is enough. That she was in possession of the billy to protect herself in
6 self-defense from human or animal predators is not determinate. It is irrelevant. And
7 why does California elect to make this girl a criminal? Because there is a risk, no matter
8 how small, that the girl might use it for an unlawful purpose, or that others may use
9 similar weapons for unlawful purposes. The United States Constitution prohibits such
10 intrusions into an otherwise law-abiding citizen’s choice for self-defense.
11 The plaintiff in Caetano v. Massachusetts, 577 U.S. 411 (2016), used a less than
12 lethal stun gun to protect herself. The Supreme Court held that her use of the stun gun
13 was protected by the Second Amendment for her self-defense. “By arming herself,
14 Caetano was able to protect against a physical threat that restraining orders had proved
15 useless to prevent. And, commendably, she did so by using a weapon that posed little, if
16 any, danger of permanently harming either herself or the father of her children.” Id. at
17 413 (Alito, J. concurring). If our hypothetical schoolgirl or the Plaintiffs in California
18 choose to have a billy for self-defense, they will find themselves in the same unenviable
19 position of Ms. Caetano, who “[u]nder Massachusetts law . . . Caetano’s mere possession
20 of the stun gun that may have saved her life made her a criminal.” Id.
21 Though California Penal Code § 22210 criminalizes the possession of a less lethal
22 billy for self-defense, federal courts protect the Constitution, and the Constitution
23 protects this citizen choice. The Second Amendment, “is the very product of an interest
24 balancing by the people and it surely elevates above all other interests the right of law-
25 abiding, responsible citizens to use arms for self-defense.”6 The American tradition is
26
27
28
1 rich and deep in protecting a citizen’s enduring right to keep and bear common arms,
2 whether they be rifles, shotguns, pistols, knives, or less lethal arms like stun guns and
3 billies. It is “this balance—struck by the traditions of the American people—that
4 demands our unqualified deference.”7
5 II. REMAND FOR BRUEN REVIEW
6 Previously, summary judgment was entered in favor of Defendant and the case was
7 appealed.8 That decision was based on the conclusion that the state statute (in effect
8 since 1923) was “longstanding,” and because it was deemed “longstanding” under older
9 circuit precedent, no further historical inquiry was to be done.9 For example, in Silvester
10 v. Harris, 843 F.3d 816 (9th Cir. 2016), a state statute imposing a firearm purchase
11 waiting period in existence since 1923 was thought of as sufficiently longstanding. In the
12 same way, Fyock v. City of Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2014), suggested that
13 several state statutes from the early twentieth century might nevertheless demonstrate a
14 longstanding regulation. This was the precedent that the Ninth Circuit had decided, and
15 this was the precedent this Court followed. After these decisions, the Supreme Court
16 decided Bruen.
17 This case was remanded from the United States Court of Appeals for the Ninth
18
19
20
21
22 7 Id.
23 8 Fouts, 561 F. Supp. 3d at 941.
9 Id. at 945–46 (“This Court agrees that Cal. Penal Code § 22210 is a longstanding
24
regulation. Under Ninth Circuit precedent, that ends the matter.”); id. at 948 (describing
25 the one-step analysis for longstanding regulations set out in Young v. Hawaii, 992 F.3d
765, 783 (9th Cir. 2021) (en banc)) (“Laws restricting conduct that can be traced to the
26
founding era and are historically understood to fall outside of the Second Amendment’s
27 scope may be upheld without further analysis. Accordingly, a regulation does not burden
conduct protected by the Second Amendment if the record contains evidence that the
28
1 Circuit specifically to consider the challenged law in light of Bruen. Under Bruen, the
2 government must affirmatively prove that its criminal statute prohibiting possession of a
3 billy is part of our historical traditions. It is the text, history, and tradition standard the
4 Court used in Heller and McDonald. What is different today is that a statute enacted in
5 1923 is no longer given a pass for being “longstanding.” Important for this case, it is
6 clear now that the critical time period is not the early twentieth century. The most
7 important period is the years following the adoption of the Second Amendment (1791),
8 and of lesser importance, the years around the adoption of the Fourteenth Amendment
9 (1868). For this case, changing the relevant time period changes the outcome.
10 A. Covered by the Text of the Second Amendment
11 Plaintiffs are law-abiding citizens who want to possess a commonly-owned billy or
12 baton11 for lawful purposes. Plaintiffs would acquire, possess, carry and use a billy to
13 protect themselves, their homes, their families and their businesses.12 A billy is not an
14 unusual weapon and both sides have previously agreed that a billy is an “arm.”13
15 Therefore, Plaintiffs have met their burden of showing that the prohibited conduct comes
16 within the text of the Second Amendment. The State takes issue with this starting point.
17 While it does not contest the fact that Plaintiffs are law-abiding citizens who wish to
18
19
20 10 Fouts v. Bonta, No. 21-56039, 2022 WL 4477732, at *1 (9th Cir. Sept. 22, 2022)
21 (“This case is remanded to the district court for further proceedings consistent with the
United States Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v.
22
Bruen, 142 S. Ct. 2228 (2022).”).
23 11 At least one court has found that an expandable baton is not a billy. People v. Starks,
130 N.E.3d 556, 564 (Ill. App. 2019) (“Further, a collapsible metal baton is not a specific
24
type of billy.”). Whether a collapsible baton is a billy need not be decided here in order
25 to judge the constitutionality of § 22210 as it applies to a billy.
12 Complaint, ¶¶ 58, 75. Beyond simple possession, § 22210 makes it a crime to
26
manufacture, import, keep for sale, sell, or loan a billy. Plaintiffs do not allege an
27 intention to engage in any of these other activities with a billy.
13 Def’s Supp. Br., Dkt. 51, at 17 n.12 (“Here, the Attorney General does not dispute that
28
1 possess a billy, the State contends that a billy is not commonly used for self-defense.
2 But the State has offered no credible evidence. Even if such evidence did exist, it would
3 only be an argument if the Second Amendment said, “the right of the people to keep and
4 bear only those Arms that are commonly used for self-defense, shall not be infringed.”
5 Of course, that is not the case. Use is not required for Second Amendment protection.
6 In Caetano, the fact that Ms. Caetano did not actually energize and fire her stun
7 gun made no difference to the Supreme Court. She simply displayed the weapon.
8 According to the Supreme Court, “[s]he stood her ground [and] displayed the stun gun.”15
9 Absent from the opinion is any discussion of the average number of times a stun gun is
10 energized in an average self-defense scenario. Absent from the opinion is any objective
11 metric counting the frequency with which stun guns have been energized and fired.
12 Instead, the measure of constitutional protection was that the stun gun was “used” in the
13 sense that stun guns are widely owned to satisfy a subjective need for protection and that
14 the number in existence was in the hundreds of thousands. The Constitution recognizes
15 that citizens may simply keep an “arm” against the day when they might want or need to
16 carry or actively use the weapon.16
17 B. The Burden Shifts to the Government
18 Bruen instructs courts to next assess whether the initial conclusion is confirmed
19 by the historical understanding of the Second Amendment. For this phase, the burden
20 shifts fully onto the shoulders of the government. Plaintiffs do not shoulder the burden of
21 proving they are entitled to enjoy Second Amendment rights. The command of the
22 Amendment is that the right to keep and bear arms “shall not be infringed.” It follows
23
24
25 14 Def’s Supp. Br., Dkt. 51, at 2, 15–22 (“[T]he Attorney General submits that billies are
not protected ‘arms’ under the Second Amendment because they are not commonly used
26
for self-defense purposes.”).
27 15 Caetano, 577 U.S. at 413, (Alito, J., concurring).
16 See generally Duncan v. Bonta, 17-cv-1017 BEN-JLB, Decision (9/22/23) Dkt. 149, at
28
1 that when a citizen complains, in a facial challenge, that the government is infringing,
2 then it is the government that must carry the burden of justifying its restriction of Second
3 Amendment rights. To borrow a phrase from Teter v. Lopez, whether a billy is a
4 “dangerous and unusual” arm is a contention as to which California bears the burden of
5 proof in the second prong of the Bruen analysis.17 Today, the government is short on
6 evidence. Evidence that billies are not commonly possessed by law-abiding citizens for
7 lawful purposes, and, evidence of a historical tradition of prohibiting possession of a billy
8 as a crime. In terms of summary judgment, there are no genuine issues of material fact.
9 C. Nuanced Analogical Reasoning is Unwarranted
10 Bruen identifies a number of guidelines for conducting the historical inquiry. The
11 parties agree that “in some cases . . . this historical inquiry will be ‘fairly
12 straightforward,’ such as when a challenged law addresses a ‘general societal problem
13 that has persisted since the 18th century.’”18 On the other hand, where a state law
14 concerns a thoroughly modern weapon or an attempt to deal with a modern social ill,
15 courts may have to engage in more nuanced reasoning and consider historical
16 analogues.19 While both parties agree on the standard, they disagree on which part of the
17 standard to apply here. Plaintiffs see it as a straightforward historical inquiry. The State
18 contends a nuanced analogical approach is needed. If the State is correct, then it need not
19 identify a historical twin; it may instead resort to regulatory analogues.
20
21
22 17 Teter v. Lopez, 76 F.4th 938, 950 (9th Cir. 2023), reh’g en banc granted, opinion
23 vacated, No. 20-15948, 2024 WL 719051 (9th Cir. Feb. 22, 2024). The government in
Teter argued that a butterfly knife was not an “arm” and that the plaintiff had the burden
24
to prove it is covered by the Second Amendment’s text. The court said, “whether
25 butterfly knives are ‘dangerous and unusual’ is a contention as to which Hawaii bears the
burden of proof in the second prong of the Bruen analysis.”
26 18 See, e.g., Def’s Supp. Br. in Resp., Dkt. 51, at 13 (quoting Bruen, 142 S. Ct. at 2131).
27 19 Def’s Supp. Br. in Resp., Dkt. 51, at 13 (quoting Bruen, 142 S. Ct. at 2132) (“[C]ases
implicating unprecedented societal concerns or dramatic technological changes may
28
1 The State contends “the [§ 22210] law addresses ‘unprecedented societal concerns’
2 and ‘dramatic technological changes,’”20 but the contention is unconvincing. The State
3 does not identify an unprecedented societal concern. It does propose that the
4 development of metal or synthetic batons is a dramatic technological change. Using
5 metal or synthetic substances in place of wood for a billy may be a change, but it is
6 doubtful whether a weapons expert would say that type of change qualifies as either
7 dramatic or technological.
8 This case concerns a technologically-simple weapon—in essence a wooden stick—
9 and an age old social ill: criminally assaulting another with a stick. So, the Bruen inquiry
10 is straightforward. “[W]hen a challenged regulation addresses a general societal problem
11 that has persisted since the 18th century, the lack of a distinctly similar historical
12 regulation addressing that problem is relevant evidence that the challenged regulation is
13 inconsistent with the Second Amendment.”21 This is precisely the context presented by
14 the billy prohibition.22
15 To be clear, this particular case could go a different direction if historical
16 analogues like prohibitions on sword canes and slungshots must be considered. They do
17 not, because Bruen takes the approach that when an early American weapon is prohibited
18 by current law and the modern social ill is the same as the early American social ill, then
19 courts need only take a straightforward look at how the particular weapon was regulated
20 in early America. A billy was used for self-defense and keeping the peace and
21 (unsurprisingly) sometimes, for criminal purposes in early America.23 The State’s expert
22
23
20 Def’s Supp. Br. in Resp., Dkt. 51, at 24.
24 21 Bruen, 142 S. Ct. at 2131.
25 22 The State is somewhat vague as to the social ill the California legislature intended to
remedy. In its post-remand briefing, the State says, “Section 22210 regulates weapons
26
that are especially likely to be used for criminal purposes,” but it offers no statistics on
27 the criminal use of billies in either historical or modern times.
23 “Common sense tells us that all portable arms are associated with criminals to some
28
1 Dennis Baron says that in the 1800s the billy was considered both a criminal’s tool and as
2 a symbol of law and order.24 Because both the weapon and the societal ill existed in
3 early America, analogical reasoning is not necessary. Only straightforward historical
4 prohibitions on possessing billy clubs are relevant.
5 Disagreeing, the State points to historical analogues regulating other handheld
6 weapons in support of its 21st century billy restriction.25 In so doing, the State engages
7 in 30,000 feet high generalities. In other words, California argues that if states
8 historically regulated weapon A, then by analogy it can regulate weapon B. And if a state
9 can regulate how a weapon can be used, then it can regulate how a weapon may be
10 carried. And if a state can regulate how a weapon may be carried, then it can regulate
11 whether a weapon can be possessed, at all. However, the State’s argument sits in tension
12 with Bruen’s instructions, so nuanced analogical reasoning is not applied here.
13 D. The Most Significant Historical Period is 1791, and Secondarily 1868
14 This case could also go a different direction if the most significant time period
15 came long after the adoption of the Fourteenth Amendment and into the early 20th
16 century. That would also be a misreading of Bruen. Bruen teaches that the most
17 significant historical evidence comes from 1791, and secondarily 1868. For the Second
18 Amendment (and other protections in the Bill of Rights), “Constitutional rights are
19 enshrined with the scope they were understood to have when the people adopted them.”26
20
21
24 Declaration of Dennis Baron, Dkt. 51-1, at ¶ 45.
22 25 Once again, the State contends “the Attorney General need only show that Section
23 22210 has relevantly similar historical analogues.” Def’s Supp. Br. in Resp., Dkt. 51, at
24; Id. (“Bruen does not require the Attorney General to identify a ‘historical twin’ or
24
‘dead ringer’ for Section 22210. That is because the law addresses ‘unprecedented
25 societal concerns’ and ‘dramatic technological changes.’”).
26 Bruen, 597 U.S. at 34 (quoting Heller, 554 U.S. at 634–35); cf. Kennedy v. Bremerton,
26
142 S. Ct. 2407, 2428 (2022) (“[T]his Court has instructed that the Establishment Clause
27 must be interpreted by reference to historical practices and understandings. The line . . .
has to accord with history and faithfully reflect the understanding of the Founding
28
1 The Second Amendment was adopted in 1791. “[W]e have generally assumed that the
2 scope of the [Second Amendment] protection applicable to the Federal Government and
3 States is pegged to the public understanding of the right when the Bill of Rights was
4 adopted in 1791.”27 Courts are to “afford greater weight to historical analogues more
5 contemporaneous to the Second Amendment’s ratification.”28 British sources pre-dating
6 the Constitution are not particularly instructive because the American Revolution was a
7 rejection of British rule. And sources post-enactment are not particularly helpful.29
8 “[T]o the extent later history contradicts what the text says, the text controls . . . . Thus,
9 post-ratification adoption or acceptance of laws that are inconsistent with the original
10 meaning of the constitutional text obviously cannot overcome or alter that text.”30 Late
11 19th century evidence is not particularly instructive. “[B]ecause post-Civil War
12 discussions of the right to keep and bear arms ‘took place 75 years after the ratification of
13 the Second Amendment, they do not provide as much insight into its original meaning as
14 earlier sources.’”31
15
16
17 Fathers.”) (cleaned up); Riley v. California, 573 U.S. 373, 403 (2014) (“Our cases have
recognized that the Fourth Amendment was the founding generation’s response to the
18
reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era.”).
19 27 Bruen, 597 U.S. at 37.
28 Rahimi, 61 F.4th at 456; contra Nat’l Rifle Ass’n v. Bondi, 61 F.4th 1317, 1323 (11th
20
Cir. 2023) (“For most cases, the Fourteenth Amendment Ratification Era understanding
21 of the right to keep and bear arms will differ from the 1789 understanding. And in those
cases, the more appropriate barometer is the public understanding of the right when the
22
States ratified the Fourteenth Amendment and made the Second Amendment applicable
23 to the States.”).
29 Bruen, 597 U.S. at 35 (“Similarly, we must also guard against giving postenactment
24
history more weight than it can rightly bear.”).
25 30 Id. at 36 (citations omitted) (cleaned up).
31 Id. (quoting Heller, 554 U.S. at 614). There is little reason to rely on laws from the
26
later part of the 1800s or the 1900s rather than ones put into effect at the time of the
27 founding. See Worth v. Harrington, No. 21-cv-01348-KMM-LIB, 2023 WL 2745673, at
*12 (D. Minn. Mar. 31, 2023) (“But the Commissioner offers no persuasive reason why
28
1 E. The State’s List of Relevant Laws
2 The State has had lots of opportunity to discover, identify, and highlight historical
3 laws prohibiting the possession of a billy. There is little. To aid in the task of looking for
4 a national “historical tradition of firearm regulation,” the State was directed to create a
5 list of relevant laws regulating arms dating from the time of the adoption of the Second
6 Amendment (1791) to twenty years after the adoption of the Fourteenth Amendment
7 (1868 + 20). A list of 250 laws was produced.32 The list begins with an English law
8 prohibition on possessing a launcegay in 1396. [1] In fact, among the list of laws
9 proffered by the State seven are from the 1300s to the 1600s. From the important
10 historical period between 1791 and 1868, the State’s list of laws includes 71 entries.33
11 Only two state laws during that time period concerned a billy and both laws came after
12 the Civil War.
13 The Supreme Court focuses on the original understanding of the Second
14 Amendment and thus requires courts to give the greatest weight to evidence from the
15 time period of its adoption. That is because not all history carries the same value.
16 “Constitutional rights are enshrined with the scope they were understood to have when
17 the people adopted them.”34 The Founders and citizens of our country at the time of the
18 adoption of the Bill of Rights had a general understanding of whether the Second
19
20
21 this Court should rely upon laws from the second half of the nineteenth century to the
exclusion of those in effect at the time of the founding in light of Bruen’s warnings not to
22
give post-Civil War history more weight than it can rightly bear.”); Firearms Pol’y
23 Coalition, Inc. v. McCraw, No. 4:21-cv-01245-P, 2022 WL 3656996, at *11 (N.D. Tex.
Aug. 25, 2022); United States v. Harrison, No. CR 22-00328-PRW, 2023 WL 1771138,
24
at *8 (W.D. Okla. Feb. 3, 2023) (quoting Bruen, 142 S. Ct. at 2136 (Barrett, J.,
25 concurring)); but see Hanson, No. CV 22-2256-RC, 2023 WL 3019777, at *16 (“In this
case, it is appropriate to apply 20th century history to the regulation at issue.”).
26 32 See Dkt. 60-1 (filed 1/11/23). Statutes in the State’s List of Laws are referred to herein
27 by their number on the list as follows: [##].
33 On the State’s list 166 laws came after 1868 and up to 1932.
28
1 Amendment would protect the right to possess and carry a billy.
2 However, of the 39 representatives who signed the Constitution in 1787, none were
3 alive fifty years later. Both Thomas Jefferson and John Adams died on July 4, 1826.
4 James Monroe died on July 4, 1831. James Madison, known as the “Father of the
5 Constitution” lived the longest, passing away in 1836. During the time the Founders
6 were alive and all of the way up to the end of the Civil War in 1865, there were no state
7 restrictions in any of the states or territories on possessing or carrying a billy. This is the
8 most persuasive evidence that the original understanding of the Second Amendment
9 protects a person’s right to keep and carry a billy.
10 F. No Billy Laws Before the End of the Civil War
11 1. Linguistics
12 The Civil War began in 1861 and ended in 1865. The first billy statute appeared in
13 1866 and the second in 1868. Neither statute prohibited simply possessing or openly
14 carrying a billy in the extreme way that California Penal Code § 22210 does. The State’s
15 expert linguist, Professor Baron, says that the weapon named the “billy” is found in
16 English sources and American newspapers at least as early as the 1840s, and opines that
17 this indicates the general public was already familiar with the term.35 Professor Baron
18 also says, “[i]t is clear from these early citations that by the 1840s, in the U.S., ‘billy’
19 referred to both a common, even stereotypical, police weapon and to a weapon used
20 offensively by criminals.”36 A State expert on martial arts and history, Robert Escobar,
21 says that the billy and the baton existed long before the 1840s. Escobar observes, “[l]ong
22 before England’s invention of modern policing by Sir Robert Peel in 1829, blunt
23 weapons, including billy clubs . . . and batons took on countless variations.”37 In fact,
24 “[b]atons of various sorts were symbols of authority in Europe for centuries prior to the
25
26
27 35 Declaration of Dennis Baron, Dkt. 51-1, at ¶¶ 34–39.
36 Id. at ¶ 39, 58.
28
1 establishment of the United States.” While Professor Baron or Escobar may have found
2 news accounts of criminal attacks with a billy in 19th century newspapers, evidence of
3 misuse does not disprove the common sense observation that law-abiding citizens may
4 have kept billies for lawful uses. Clayton Cramer, Plaintiffs’ expert, observes that any
5 criminal misuse of a weapon will receive more attention by news media than the many
6 non-criminal uses or simple possession of the same weapon.39 Consequently, with the
7 billy’s presence and use in America throughout the 1800s, statutory analogues for other
8 weapons are not relevant.
9 2. The States in 1866 and 1868
10 After the Civil War, New York enacted the first billy restriction anywhere in the
11 United States (in 1866). It criminalized concealing or furtively possessing any of eight
12 weapons when done so with the intent to use the weapon against a person. [74] The
13 weapons included the: slung-shot, billy, sand club, metal knuckles, dirk or dagger, sword-
14 cane, and air-gun. [74] Simple open possession of a billy was not prohibited as it is
15 under § 22210. To be clear, laws that penalize the criminal misuse of a weapon, such as
16 California Penal Code § 245 (assault with deadly weapon)40 are not constitutionally
17 prohibited nor do they suffer from the same infirmity. These kinds of laws promote and
18 preserve a peaceful and orderly society. Florida enacted the second state law—a
19 sentencing enhancement—in 1868 for being armed with a billy while committing a
20 criminal offense. [82] Simple possession of a billy in any other circumstance was
21
22
23 38 Id. at ¶ 34 (citing “Portrait of Emperor Domitian” holding a baton, by Barnardino
Campi).
24 39 Expert Rebuttal of Clayton Cramer, Dkt. 59-1, at 34–35.
25 40 The California Supreme Court in People v. Grubb, 63 Cal.2d 614, 621 (1965),
described how criminal intent matters for § 22210: “the statute would encompass the
26
possession of a table leg, in one sense an obviously useful item, when it is detached from
27 the table and carried at night in a ‘tough’ neighborhood to the scene of a riot. On the
other hand the section would not penalize the Little Leaguer at bat in a baseball game.”
28
1 unregulated. In 1873, Massachusetts enacted a sentencing enhancement like Florida’s for
2 having a billy if arrested while committing a crime. [99] Like New York and Florida,
3 Massachusetts did not prohibit the simple possession of a billy. Even if three states did
4 prohibit simple possession of a billy (they did not), three states are insufficient to
5 demonstrate a history and tradition of regulation. But it does not matter here.
6 No other state laws concerning a billy are found in the most important period of
7 history, i.e., 1791 to 1868. Neither the New York law nor the Florida statute, and the few
8 others like it that would come later, offer much insight about the original meaning of the
9 Second Amendment. Rounding out the list of state laws concerning a billy in the 1800s,
10 there is an 1886 Maryland law about possessing a billy at an election day polling place41
11 [167], two concealed carrying restrictions: 1887 Michigan [171], 1893 Rhode Island
12 [201], and a 1890 Oklahoma territorial law [190].
13 3. Most of the State’s Laws Come Too Late
14 The State’s strongest evidence comes in the form of a dozen or so statutes from the
15 years after 1868 and up to the 1930s. But those laws are too recent to establish an earlier
16 tradition of billy regulation, and reliance on these late 19th and 20th century laws cannot
17 bear the weight. Bruen instructs clearly that “[b]ecause post-Civil War discussions of the
18 right to keep and bear arms ‘took place 75 years after the ratification of the Second
19 Amendment, they do not provide as much insight into the original meaning as earlier
20 sources.’”42 Justice Barret reinforces this point in her Bruen concurrence, “today’s
21 decision should not be understood to endorse freewheeling reliance on historical practice
22 from the mid-to-late 19th century to establish the original meaning of the Bill of
23
24
25
41 Although not on the State’s list of laws, in 1886, Maryland may have enacted another
26
law prohibiting the concealed carrying of a billy. See Lawrence v. State, 475 Md. 384,
27 402–03 (Ct. App. Md. 2021) (describing an 1886 concealed carrying law including a billy
and 1972 amendment removing billy from the list of regulated weapons).
28
1 Rights.”
2 4. State v. Workman Illustrates the Problem With Late 19th Century
Practice
3
4 State v. Workman, 35 W. Va. 367, 373 (W. Va. 1891), provides a perfect example
5 of why these later laws cannot be counted on to represent the original constitutional
6 understanding. Exactly 100 years after the adoption of the Second Amendment, and 55
7 years after the last Founder passed away, the first court to consider the constitutionality
8 of a statute prohibiting the carrying of a billy misapprehended the kinds of arms
9 constitutionally protected. In 1882, West Virginia enacted a prohibition on carrying a
10 pistol, dirk, bowie knife, razor, slungshot, metal knuckles or billy. [148] This is one of
11 the late 19th century statutes the State relies on. When a defendant was convicted of
12 carrying a pistol, the state supreme court considered the types of weapons protected by
13 the Second Amendment. Unfortunately, the Workman court got it half wrong. Workman,
14 35 W. Va. at 373. The state court mistakenly did not regard the pistol or the billy to be
15 the sorts of arms protected by the Second Amendment. Instead, only weapons of war
16 were covered by the Constitution, according to Workman. As to other kinds of arms,
17 Workman incorrectly observed,
18 in regard to the kind of arms referred to in the [Second]
amendment, it must be held to refer to the weapons of warfare
19
to be used by the militia, such as swords, guns, rifles, and
20 muskets,—arms to be used in defending the State and civil
liberty,—and not to pistols, bowie-knife, brass knuckles, billies,
21
and such other weapons . . . .
22
(Emphasis added.). In short, Workman held that weapons of war are protected by the
23
Second Amendment but found weapons like the billy are not weapons of war, and
24
25
26
27
28
1 therefore are not protected.
2 Workman was wrong in concluding the Second Amendment does not cover arms
3 like the pistol and the billy. But, if that was its viewpoint in 1891, it explains why the
4 state legislature may have (also incorrectly) thought it was not infringing on its citizens’
5 Second Amendment rights by prohibiting the simple possession of a billy. Apparently,
6 too many years had passed since the nation’s founding. Along the way, the meaning of
7 the Constitution had become muddled. The Workman case provides a reason to suspect
8 that other state legislatures during the late 1800s may have likewise incorrectly regarded
9 a billy as beyond the ambit of the Second Amendment. Workman is exactly the reason
10 Bruen looks to Founding-era laws, not post-Civil War laws, to understand the Bill of
11 Rights.
12 5. No Tradition is Evident in the 1800s
13 To summarize, there were no billy laws before the Civil War and in the years
14 following the Civil War through the end of the 1800s, a billy was the subject of seven
15 state laws and one territorial law. Three states prohibited carrying a billy concealed.
16 Two states provided sentencing enhancements. One prohibited possession only within
17 300 yards of a polling place on an election day. Only one state law prohibited simple
18 possession of a billy (West Virginia in 1882) and in that case the state supreme court
19 misconstrued the Second Amendment.
20 Having reviewed each of the 250 laws listed by Defendant, it is quite clear that
21
22
44 See also United States v. Miller, 307 U.S. 174, 178 (1939) (recognizing Second
23 Amendment protection for weapons useful in warfare, unlike a short-barreled shotgun)
(“In the absence of any evidence tending to show that possession or use of a [short-
24
barreled shotgun] at this time has some reasonable relationship to the preservation or
25 efficiency of a well regulated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instrument. Certainly it is not within
26
judicial notice that this weapon is any part of the ordinary military equipment or that its
27 use could contribute to the common defense.”).
28
1 there is no national historical tradition of prohibiting the simple possession, or the open
2 carrying, of a billy evident during the important period of history when lawmakers still
3 had an unmolested conception of the original meaning of the Second Amendment. There
4 is no genuine issue of material fact as to this most important fact. The most that can be
5 said is that there was the beginning of a late-breaking post-Civil War tendency to prohibit
6 the concealed carrying of a billy.45
7 6. The Late 1800s
8 Only seven states in the 1800s had billy restrictions. So, why does the State and its
9 expert witness say fourteen states had “anti-billy club laws” in the 1800s?46 The sentence
10 is inaccurate. The assertion is misleading. And it is important. By giving the impression
11 that fourteen states had adopted anti-billy laws in the 1800s, the State implies that state
12 laws were numerous enough to represent a historical tradition. A different story is told
13 by the State’s own list of laws. A different story is told by the expert’s own data. The
14 problem with the “fourteen states” claim is that there were actually half that.
15 Where does one find these other so-called state laws? It is a bit of rhetorical
16 legerdemain. Beyond the seven already discussed, there were no other state-wide anti-
17 billy laws in the 1800s. However, there were municipal ordinances in mostly very small
18 cities. Consequently, when the State’s expert says, “[f]ourteen states enacted such [billy]
19 laws in the 1800s,”47 it is more accurate to say that there were seven state laws and seven
20
21
22 45 Also listed were a handful of municipal ordinances affecting billies, but like territorial
23 laws, city ordinances shed very little light on whether a national tradition of regulation
existed. See, e.g., the City of St. Louis, Missouri passed a municipal ordinance in 1871
24
prohibiting concealed carrying of a billy without permission from the mayor. [91] Two
25 other cities followed suit in 1872 [95, 96], and a fourth city in 1874. [105]
46 See Def’s Supp. Br. in Resp., Dkt. 51, at 5 (“By 1900, fourteen states (out of 45 plus
26
the District of Columbia) had passed anti-billy club laws. Spitzer Decl., ¶ 10, Ex. B”);
27 Id. at 29–30 (“Throughout the 1800s . . . 14 states restricted “billies’ during this period by
name.”).
28
1 city ordinances. Through the end of the 1800s, seven state legislatures had enacted three
2 concealed carry laws, two sentencing enhancements, one election-day law, and one
3 constitutionally-suspect West Virginia carrying prohibition.48 And when the State’s
4 expert says, “the earliest law appears to have been enacted in Kansas in 1862,”49 what is
5 meant is that it was the city of Leavenworth, Kansas (pop. 12,606) that had a municipal
6 ordinance (against concealed carrying).50 No state law, anywhere, about a billy existed
7 before the end of the Civil War. The State’s attorneys embrace and repeat this rhetorical
8 flourish, writing about the 1800s:
9 In addition, 14 states restricted “billies” during this period of
time by name. Many of these laws were enacted shortly before
10
and after the ratification of the Fourteenth Amendment.51
11
But the Court reads the history differently. Once again, there were not fourteen states
12
(there were seven), and only two laws came close in time to the ratification of the
13
Fourteenth Amendment in 1868 (not what most would consider “many”).52 The rest
14
15
16
17 48 Professor Spitzer’s chart (Exh B) lists the following states and years, but a cursory
review of the underlying statutes and ordinances makes clear that his reference to Kansas
18
is about an ordinance limited in application to the city of Leavenworth, Kansas (Dkt. 51-
19 3, at 25). Other municipal ordinances in Spitzer’s chart in order of age are: Missouri – St.
Louis (1871) and St. Joseph (1897) (Dkt. 51-3, at 37–38); New Jersey – Jersey City
20
(1871) (Dkt. 51-3, at 45); Maryland – City of Annapolis (1872) (Dkt. 51-3, at 29, 31);
21 Nebraska – Nebraska City (1872), Omaha (1890), Fairfield (1899) (Dkt. 51-3, 42–43);
Iowa – Sioux City (1882) (Dkt. 51-3, at 23–24); Pennsylvania – Johnstown (1897) (Dkt.
22
51-3, at 61–62); and Oregon – Oregon City (1898) (Dkt. 51-3, at 60).
23 49 Id.
50 See Declaration of Robert Spitzer, Dkt. 51-3, at Exh C, p.25; Bevis v. City of
24
Naperville, 2023 WL 2077392, *11 (N.D. Ill. Feb. 17, 2023) (“The city of Leavenworth,
25 Kansas passed the first law regulating the billy club in 1862.”).
51 See Def’s Supp. Br. in Resp., Dkt. 51, at 30 (citing Spitzer Decl. ¶¶ 9–12, Exh B).
26 52 One statute was enacted shortly before the Fourteenth Amendment (New York’s 1866
27 carrying a concealed weapon law [74]) and one statute was enacted the same year as the
Fourteenth Amendment (Florida’s 1868 law punishing possessing a billy while
28
1 came trickling in with one in 1873 and a handful of others in the 1880s and 1890s. Here
2 is another example of the State’s departure from precision in its briefing. The State
3 writes:
4 Defendant identified several state laws, in addition to the
municipal regulations that banned possession of billy clubs.
5
See Dkt. 60-1 at [74] (1866 New York law), [136] (1881 llinois
6 law), [160] (1885 New York law); see also Dkt. 60-2 at [230]
(1911 New York law), [233] (1913 New York law), [234]
7
(1915 North Dakota law), [236, 237] (1917 California laws).53
8
The parties may read this discussion as overly-pedantic. But for this case, it is important
9
to know if there are historical state laws that banned possession of a billy club like
10
California Penal Code § 22210 bans possession of a billy club. Unfortunately, the
11
examples cited are not simple possession bans. The State cites the 1866 New York law54
12
[74], but that statute did not prohibit simple possession. The New York law prohibited
13
concealing or furtively possessing a billy while using, attempting to use, or intending to
14
use a billy against another person. Next, the State cites an 1881 Illinois law55 [136], but
15
that statute did not mention a billy. Three more iterations of New York’s law (1885
16
[160], 1911 [230], 1913 [233]) are listed next,56 but like the predecessor statute, these
17
versions still regulated using and concealing as opposed to simple possession of a billy.
18
Finishing up the list of examples given by the State, is a 1915 North Dakota law57 [234].
19
However, the North Dakota law applied to concealing, rather than simple possession, and
20
expressly permitted possession “to effect a lawful and legitimate purpose.”58 To sum up,
21
based on the State’s own excerpts of historical statutes (provided by State expert
22
23
24
25 53 Def’s Br. in Resp., Dkt. 67, at 7:19–23.
54 Id. at 7:20.
26
55 Id. at 7:21.
27 56 Id. at 7:21–22.
57 Id. at 7:22.
28
1 Professor Spitzer and attached to his declaration), of the seven state laws the State claims
2 “banned the possession of billy clubs,” only one did—California’s own 1917 statute.59
3 It makes it difficult to properly perform the Bruen analysis when the State’s expert
4 who has studied gun regulations for thirty years is imprecise in his language, and when
5 the State’s briefing employs a mischaracterization.60 After all, the subject of the
6 regulatory “what and when” is the central historical tradition inquiry under Bruen. More
7 importantly, it is the government’s central burden to show a national tradition of
8 regulation by reference to state laws and court decisions in effect during the most
9 important historical time period.
10 7. The Historical Laws Were Already Known, and Little has Changed
11 This Court had already identified five of these post-Civil War billy statutes in its
12 previous decision.61 If the existence of these late 19th century statutes were sufficient to
13 justify California’s billy prohibition, why did the court of appeals remand the case for
14 further consideration in light of Bruen? Apparently, it was to give the government an
15 opportunity to identify earlier billy prohibitions and an earlier tradition. As it turns out,
16 there is nothing. Though given lots of opportunity to do so, the State has not shown a
17 tradition of prohibiting the simple possession of a billy during the most important
18 historical time period. There is no genuine issue of material fact. Plaintiffs are entitled to
19 summary judgment as a matter of law.
20 8. Dirks, Daggers, and Bowie Knives
21 The State needed to identify laws that are similar to its restrictions on a billy—not
22 just on any weapon. The search is straightforward. After all, it can hardly be argued that:
23 (1) a billy represents a dramatic change in technology; or (2) that the State is attempting
24
25
59 Def’s Br. in Resp., Dkt. 67, at 7:23.
26 60 See Def’s Supp. Brief in Resp., Dkt. 51, at 5 (“By 1900, fourteen states (out of 45 plus
27 the District of Columbia) had passed anti-billy club laws. Spitzer Decl., ¶ 10, Ex. B”).
61 See Fouts, 561 F. Supp. 3d at 956–57 (citing New York 1866, West Virginia 1882,
28
1 to address a “modern” societal danger with its 100-year-old law; or (3) the danger of
2 using a non-lethal weapon against another is a danger about which the Founders had no
3 experience.
4 Nevertheless, the State pushes the 30,000 feet high view that historical restrictions
5 on other weapons may be wheeled in as analogues to justify its ban on the billy. After
6 all, there is something of a tradition of concealed carrying regulation for other hand-held
7 weapons. Quite a few states prohibited the concealed carrying of dirks, daggers, bowie
8 knives, bludgeons, swords, sword canes, and slungshots in the important years between
9 1791 and 1868. In fact, even California enacted an 1863 law prohibiting the concealed
10 carrying of a dirk, a pistol, a sword cane, or a slungshot. [72] It is significant that
11 California did not include a billy at that time. Perhaps the legislature understood that the
12 Second Amendment protected possession of a billy for lawful purposes like self-
13 defense.62
14 Today, California heavily regulates a number of other non-firearm weapons such
15 as: a dirk or dagger in § 21310, a ballistic knife in § 21110, a writing pen knife in §
16 20910, a lipstick case knife in § 20610, a cane sword in § 20510, and metal knuckles in §
17 21810, to name a few. Some of these current prohibitions may be justified by a historical
18 tradition of regulating these particular weapons. But it is not a correct application of
19 Bruen to lump all such arms together in some sort of regulatory potpourri where a
20 traditional prohibition on carrying a dirk or dagger is sort-of-similar-enough to justify
21 criminalizing a person’s possession of a billy.
22 First, a billy is a most basic weapon. A billy can be improvised from common
23 wood sticks, table legs, broom handles, or dowel rods. To manufacture a billy, one does
24 not need metal working skills like one needs to make prohibited metal knuckles. A billy
25 does not require sharpening skills like one requires to fashion prohibited dirks, daggers,
26
27
62 After realizing it hurt law-abiding citizens, California’s statute was repealed in 1870.
28
1 or bowie knives. A billy does not require blacksmith skills as a person would need to
2 forge a prohibited sword cane. And a billy does not require the tools and leather crafting
3 skills like those required to create a prohibited lead sap or slungshot.
4 Second, it is black letter law that penal statutes are to be drafted and interpreted
5 with specificity so as to give notice to ordinary citizens about what is prohibited to afford
6 due process. That is because “a statute which either forbids or requires the doing of an
7 act in terms so vague that men of common intelligence must necessarily guess at its
8 meaning and differ as to its application violates the first essential of due process of
9 law.”63
10 Consequently, when the State imprecisely argues that regulations on “launcegays”
11 and “demy hakes” suffice to justify a prohibition on a billy,64 it does so in the face of an
12 American tradition of employing greater precision of language when defining and
13 proscribing crimes. If state legislatures wanted to include the billy in their lists of
14 regulated hand-held weapons, they surely knew how to do so. From the State’s own
15 briefing comes a handy example. Today, Illinois prohibits the carrying of a billy with the
16 intent to use it unlawfully against another but does not prohibit simple possession. See
17 720 Ill. Comp. Stat. 5/24-1(a)(2). At the same time, Illinois prohibits the simple
18 possession of other weapons including a bludgeon, black-jack, slung-shot, sand-bag, and
19 metal knuckles. See 720 Ill. Comp. Stat. 5/24-1(a)(1). The legislature knew how to
20 distinguish a bludgeon in subsection (1) from a billy in subsection (2). Being criminal
21 statutes, the Illinois courts are careful to respect these statutory distinctions. In two
22 different cases the Illinois courts distinguished between possession of “a simple
23 nightstick or billy” (permissible) and a bludgeon (prohibited). People v. Starks, 130
24 N.E.3d 556 (Ill. 2019); People v. Fink, 419 N.E.2d 86 (Ill. 1981). That California (from
25 1863 to 1870), like many other states, specified numerous prohibited weapons by name,
26
27
63 Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).
28
1 but did not specify as prohibited the billy, is substantial unrebutted evidence that a person
2 had a right to carry the basic everyday arm.
3 Third, even if knife regulations were relevant, they would not help the State much.
4 There were laws restricting bowie knives in some states in the 1800s, but not the vast
5 majority of states. There is little evidence of actual prosecutions for simply possessing a
6 bowie knife, much less a judicial opinion on its purported constitutionality. In fact, one
7 court observed that the Tennessee bowie knife law was generally disregarded.65 The
8 argument that a cluster of laws prohibiting the carrying of dangerous knives could justify
9 a gun ban, lost its wind in McDonald. If the regulation of knives was not a sufficient
10 basis for restricting handguns in Chicago, neither are historical regulations of dirks,
11 daggers, and bowie knives useful for justifying a prohibition on possessing a billy in
12 California.
13 G. Severability
14 California Penal Code § 22210 prohibits the making, selling, and possessing of a
15 long list of non-firearm weapons, including the billy. The prohibitions regarding the billy
16 are unconstitutional. The question then becomes whether the unconstitutional part of
17 § 22210 can be severed from the rest. It can.
18 “‘Severability is of course a matter of state law.’ To determine whether a state
19 statute is severable, we are bound by state statutes and state court opinions.” Project
20 Veritas v. Schmidt, 72 F.4th 1043, 1063 (9th Cir. 2023) (citations omitted). In California,
21 courts first look to a severability clause. See Sam Francis Found. v. Christies, Inc., 784
22 F.3d 1320, 1325 (9th Cir. 2015) (en banc) (citing Cal. Redev. Ass’n v. Matosantos, 53
23 Cal. 4th 231 (Cal. 2011). Section 22210 does not have a severability clause.
24
25
26 65 See, e.g., Day v. State, 37 Tenn. 496, 499 (Tenn. 1858) (“It is a matter of surprise that
27 these sections of this act, so severe in their penalties, are so generally disregarded in our
cities and towns.”) (describing state law prohibiting the concealed carrying of bowie
28
1 Nevertheless, there are three additional criteria that may be considered: whether the
2 invalid provision is grammatically, functionally, and volitionally separable. Cal. Redev.
3 Ass’n, 53 Cal. 4th at 271.
4 Here, all three criteria are met. First, removing “billy” from the list in § 22210,
5 does not change the grammatical structure. Grammatical separability exists because the
6 invalid part (billy) can be removed as a whole without affecting the wording or coherence
7 of what remains and the revised provision is perfectly coherent. Id. Second, there is
8 functional separability because the remainder of the statute is complete. Id. Third, the
9 volitional separability test is met because it seems obvious that the remainder of § 22210
10 would have been adopted by the legislature, had it foreseen the partial invalidation of the
11 statute. Id.; see also Sam Francis Found., 784 F.3d at 1326. Accordingly, the term
12 “billy” is hereby severed from the remainder of § 22210.
13 III. CONCLUSION
14 The Second Amendment protects a citizen’s right to defend one’s self with
15 dangerous and lethal firearms. But not everybody wants to carry a firearm for self-
16 defense. Some prefer less-lethal weapons. A billy is a less-lethal weapon that may be
17 used for self-defense. It is a simple weapon that most anybody between the ages of eight
18 and eighty can fashion from a wooden stick, or a clothes pole, or a dowel rod. One can
19 easily imagine countless citizens carrying these weapons on daily walks and hikes to
20 defend themselves against attacks by humans or animals. To give full life to the core
21 right of self-defense, every law-abiding responsible individual citizen has a
22 constitutionally protected right to keep and bear arms like the billy for lawful purposes.
23 In early America and today, the Second Amendment right of self-preservation permits a
24 citizen to “‘repel force by force’ when ‘the intervention of society in his behalf, may be
25 too late to prevent that injury.’”66 The Founders of our country anticipated that as our
26
27
28
1 ||nation matured circumstances might make the previous recognition of rights undesirable
2 inadequate. For that event, the Founders provided a built-in vehicle by which the
3 || Constitution could be amended, but a single state, no matter how well intended, may not
4 || do so, and neither can this court.
5 Plaintiffs in this case challenge California Penal Code § 22210 as it applies to a
6 || billy. It is declared that the prohibition on a billy unconstitutionally infringes the Second
7 || Amendment rights of American citizens and it is hereby enjoined.
8 || IT IS HEREBY ORDERED that:
9 Summary judgment is entered for Plaintiffs. The following permanent injunction
10 effective immediately:
11 1. Defendant Attorney General Rob Bonta, and his officers, agents, servants,
12 ||employees, and attorneys, and those persons in active concert or participation with him,
13 those duly sworn state peace officers and federal law enforcement officers who gain
14 || knowledge of this injunction order or know of the existence of this injunction order, are
15 enjoined from implementing or enforcing California Penal Code § 22210 as it applies to a
16 || billy.
17 IT IS SO ORDERED.
18 || Dated: February 23, 2024
19 ON. ROGER T. BENIT
Senior United States District Judge
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