Ban of Blackjacks, Billy Clubs, and Batons to go before Judge Roger Benitez in Ninth Circuit

Early 20th Century police batons in Edingburg Police Centre Museum by Kim Traynor CC BY-SA 3.0, cropped and scaled by Dean Weingarten

One of the very few Second Amendment cases heard by the supreme Court in the last decade was Caetano v. Massachusettes, decided March 21, 2016.

The Court has held that “the Second Amendment ex-tends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

 The Supreme Court of the United States, in a unanimous decision, reversed the Massachusetts Supreme Court, and held that all bearable arms were protected by the Second Amendment, with rare exceptions. 

Bearable arms which are in common use for lawful purposes may not be banned, under the Second Amendment. Some enterprising Second Amendment supporters sued the Attorney General of California, because the state of California bans blackjacks, billy clubs and batons for nearly everyone in all circumstances.

Given the Supreme Court decisions of Heller, McDonald, and Caetano, it is hard to see how California AG Becerra can expect to prevail in Fouts v. Becerra (3:19-cv-01662), filed on 1 September, 2019. From sandiegouniontribune.com:

Fouts was licensed in Oregon to carry a baton in his role as a private security contractor. Additionally, a 1980 Oregon Supreme Court decision found possession of a billy club in the home is constitutional, describing the weapon as “the first personal weapon fashioned by humans.”

His co-plaintiff is Tan Miguel Tolentino, an honorably discharged airman who carried a baton as a law enforcement specialist in the U.S. Air Force. Tolentino now works as an information technology specialist.

Second Amendment attorney Alan Beck, who filed the lawsuit with Mississippi-based co-counsel Stephen Stamboulieh, said the time was ripe for such a challenge.

The case has been wending its way through the court system. A hearing on the motion for summary judgement for Fouts and Tolentino was scheduled for September 11, 2020.

Plaintiffs bring this motion because there is no genuine dispute of material fact that the Second Amendment to the United States Constitution protects the right of all law-abiding citizens to possess and acquire billies/batons which are typically possessed for lawful purposes and that California cannot establish the required reasonable fit between its complete ban on billies/batons and its interest in public safety. The State’s ban on billies/batons cannot survive constitutional scrutiny and thus, Plaintiffs are entitled to judgment as a matter of law. 

This motion is based on this notice, as well as the memorandum of points and authorities, the declaration of Stephen D. Stamboulieh and attached exhibits, and the declarations of Russell Fouts and Tan Miguel Tolentino, filed herewith. This motion is also based on thepapers and pleadings already on file in this motion and such matters as may be presented to the Court at the hearing.1DATED: September 11, 2020

The hearing on the motion for summary judgement has been re-scheduled for 7 December, 2020. Numerous precedents in other states are cited. A particularly appropriate example comes from the Oregon Supreme Court:

 44. In State v. Kessler, 289 Ore. 359, 614 P.2d 94, 1980 Ore. LEXIS 1031 the Oregon Supreme Court found: The club is considered the first personal weapon fashioned by humans. O. Hogg, Clubs to Cannon 19 (1968). The club is still used today as a personal weapon, commonly carried by the police. ORS 166.510 prohibits posession of a “billy;” however, ORS 166.520 states that peace officers are not prohibited from carrying or possessing a weapon commonly known as a “blackjack” or “billy.” The statute in this case, ORS 166.510, prohibits the mere possession of a club. The defendant concedes that the legislature could prohibi carrying a club in a public place in a concealed manner, but the defendant maintains that the legislature cannot prohibit all persons from possessing a club in the home. The defendant argued that a person may prefer to keep in his home a billy club rather than a firearm to defend against intruders. 

Our historical analysis of Article I, section 27, indicates that the drafters intended “arms” to include the hand-carried weapons commonly used by individuals for personal defense. The club is an effective, hand-carried weapon which cannot logically be excluded from this term. We hold that the defendant’s possession of a billy club in his home is protected by Article I, section 27, of the Oregon Constitution.

As noted in the Complaint for Declaratory Injunction and Relief by the plaintiffs, Fouts and Tolentino, numerous other state governments have eliminated other, similar laws already, rather than go to court on the merits. It is hard to see what AG Becerra has to gain. He may hope for protection in the notoriously anti-Second Amendment Ninth Circuit. But with 10 judges appointed by President Trump, the Ninth is nowhere as far left as it used to be. In addition, the likelyhood of an Amy Coney Barett justice of the Supreme Court is high. 

Perhaps he is banking on a Supreme Court packed with far left justices by a Biden administration. It could happen. 

Judge Roger T. Benitez has shown he takes the Second Amendment seriously, as a fundamental right, due as much deference as any other fundamental right in the Bill of Rights. The case is so one sided, Judge Benitez may simply grant summary judgement. We will not know until well after the election, as the hearing for summary judgement is scheduled for December 7th. 

It seems appropriate it will be on Pearl Harbor day. 

©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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