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The Second Amendment And Billy Clubs

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It is not surprising that most people think the Second Amendment only protects handguns and rifles. The Supreme Court’s three major Second Amendment decisions (District of Columbia v. Heller, McDonald v. Chicago and New York State Rifle Association v. Bruen) all addressed handguns. Heller and MacDonald addressed the right of individuals to possess a handgun in their homes. In Buren, the Supreme Court held that the Second Amendment protects an individual’s right to carry a handgun for self-defense. While the Second Amendment certainly protects the possession of handguns and rifles, it is not so limited. In Fouts v. Bonta, a federal district court in California recently held that a California law banning the possession of a billy (“Billy”) was unconstitutional under the Second Amendment. The Fouts case adds to the list of cases in which arms, other than firearms, are held to be protected by the Second Amendment.

The Second Amendment protects the “right of the people to keep and bear arms.” In Heller, the Supreme Court’s first major Second Amendment case, the Court did not need to precisely define the word “arms,” because it was sufficient in that case to determine whether handguns were “arms.” The Supreme Court’s analysis in Heller, however, left little doubt that the word “arms” in the Second Amendment covered more than just firearms. Indeed, in Fouts, California did not dispute that a Billy was “an ‘arm’ as described by the Second Amendment.”

California did, however, argue that the Billy was not in “common use,” and, therefore, fell outside the Second Amendment’s scope. While the Supreme Court has not listed the types of “arms” that are entitled to protection under the Second Amendment, the Court did hold that only those “arms” in “common use” are protected by the Second Amendment. Determining whether an arm is in “common use” first requires an understanding of the weapons in question. The California law banning the possession of a Billy did not define this weapon. Nor does it appear that California cited any California court cases that defined a Billy. The district court stated that the “term remains vague today and may encompass a metal baton, a little league bat, a wooden table leg, or a broken golf club shaft, all of which are weapons that could be used for self-defense but are less lethal than a firearm.”

In Fouts, California argued that a Billy is not in “common use” because it is not frequently used in actual self-defense situations. A Billy is, in one sense, nothing more than a club. Under a narrow definition, a Billy is a wooden club. The California law at issue, however, did not limit a Billy to a wooden club, and the word Billy could cover many different objects that can be used as a club. This is a common problem with prohibitions on certain types of weapons. For example, certain cities prohibit carrying many different types of pocket-knives. A collapsible box cutter could easily constitute a “pocket-knife.” Such open-ended definitions can lead to either the arbitrary enforcement of such a law, or to absurd results (for example, a handyman or delivery man gets arrested for carrying a razor knife that, to them, is a tool).

As a practical matter, without a clear understanding of what “arms” are covered by the word Billy, it is not possible to prove or disprove whether a Billy is in common use. If the word Billy covers many different types of clubs or objects that can be used as a club, the word would cover a vast number of arms. The larger the number of arms covered by the word Billy, the more likely it becomes that California’s law restricts possession of an “arm” that is in common use.

The court in Fouts did not need to resolve these issues, because California had the burden of proving that the arms covered by the word Billy were not in common use. California could not meet this burden. California tried to meet this burden by arguing that a Billy, whatever arms that word covers, are not commonly “used” in self-defense situations. The court rejected California’s argument. For example, many people keep a bat in their home for self-defense. While the vast majority of those individuals will never actually use a bat against an intruder, the bat is still being used for self-defense. Relying on a Supreme Court case that addressed stun guns, the court stated that “the stun [gun] was ‘used’ in the sense that stun guns are widely owned to satisfy a subjective need for protection and that the number in existence was in the hundreds of thousands.” If a Billy is a club, California could not credibly argue that clubs are not commonly used for self-defense, i.e., available for self-defense if needed.

In the end, California did not present “any credible evidence” on the common use issue. As a result, the court did not have to delve more deeply into what weapons fall under the word Billy and how they are actually used. Without credible evidence on the common use issue, California could not meet its burden of proving that a Billy is not in common use.

Once the court in Fouts determined that a Billy is an arm in common use under the Second Amendment, the issue became whether a legislative history existed that would support California’s prohibition on the possession of a Billy. The legislative tradition test determines the original understanding of the Second Amendment by looking at what laws limited the ownership or carrying of arms when the Second Amendment was enacted. These laws shed light on the types of restrictions legislators believed were compatible with the right to keep and bear arms when the Second Amendment was enacted.

Also relevant are state judicial decisions addressing the constitutionality of state laws that restricted the right of individuals to own or carry arms around the time the Second Amendment was enacted. For example, the case, Nunn v. Georgia (1846), supports the claim that the right to keep and bear arms included the right to carry a pistol. In Nunn, the defendant was prosecuted for carrying a pistol under an 1837 Georgia law that made it unlawful to carry a pistol either openly or concealed. The Georgia Supreme Court held that individuals have a right to keep and bear arms, which meant that the Georgia legislature could not constitutionally prohibit the carrying of a pistol. While the legislature could make the concealed carrying of a pistol unlawful, it could not also ban the open carrying of a pistol. While the Georgia legislature could regulate, to some extent, how weapons were carried, it could not ban, outright, the carrying of weapons. In Bruen, the Supreme Court described the importance of Nunn as follows: “The Georgia Supreme Court’s treatment of the State’s general prohibition on the public carriage of handguns indicates that it was considered beyond the constitutional pale in antebellum America to altogether prohibit public carry.”

In Fouts, the most significant problem California faced was the absence of any legislative tradition prohibiting, or even regulating, the possession or carrying of a Billy in the 1700s and most of the 1800s. Indeed, the district court found that “[d]uring the time the Founders were alive and all the way up to the end of the Civil War in 1865, there were no state restrictions in any of the states or territories on possessing or carrying a Billy.” While some laws were passed in the mid-1800s that prohibited the concealed carrying of certain types of knives, swords and pistols, these laws were enacted decades after the Second Amendment was enacted. But even if those laws from the mid-1800s were also relevant, practically all of these laws were limited to prohibiting the concealed carrying of certain knives and small pistols, and did not prohibit the mere possession of any arms. Finally, these laws did not even mention the Billy and they do not, and cannot, support an argument that a legislative tradition of regulating the possession or carrying of a Billy existed.

After the Civil War, some states did enact laws that addressed the Billy. By 1880, seven states had enacted laws that mentioned the Billy in some manner: “Three of the states prohibited carrying a billy concealed. . . . Two states provided sentencing enhancements [for misusing a billy]. . . . One prohibited possession only within 300 yards of a polling place on an election day. . . . Only one state law prohibited simple possession of a billy (West Virginia in 1882) and in that case the state supreme court misconstrued the Second Amendment.” This limited and generally narrow legislation concerning the “Billy” was insufficient to support a total ban on possessing a Billy.

Further, one state’s banning the Billy in 1882 did not show the existence of a legislative tradition of prohibiting the possession of the Billy. First, a law from a single state does not make a legislative tradition. Second, this West Virgina law was enacted about 90 years after the Second Amendment was enacted and did not shed light on the Second Amendment’s original scope. Finally, the Supreme Court in Bruen stated that laws passed after the enactment of the 14th Amendment in 1868 are not particularly useful for determining the scope of the Second Amendment or the 14th Amendment.

The Fouts case is an indication that courts are going to have to address Second Amendment challenges directed at many different weapon prohibitions. There are laws in many states today that prohibit the possession and carrying of a wide array of arms. After Bruen, the constitutionality of such laws is not assured. The hard reality is that in the 1700s and for practically all of the 1800s, hardly any laws prohibited the possession of arms. While a few laws did address the concealed carrying of certain arms, those laws generally allowed the open carrying of those very same arms. When the Second Amendment was enacted and up to the enactment of the 14th Amendment in 1868, the possession and carrying of weapons was common in the United States.

It is going to take some time to see how courts address the many challenges to gun control laws and laws against the possession of other types of weapons. After the Supreme Court’s decision in Heller, most courts showed themselves unwilling to strike down gun control laws. The lower courts developed tests for evaluating Second Amendment claims that were highly deferential to gun control laws and other types of restrictions on the possession and carrying of arms. It seemed, in the decade following the decision in Heller, that the Second Amendment was a second-class constitutional right. As the Court stated in Bruen:

If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of ‘intermediate scrutiny’ often defer to the determinations of legislators. But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here.

A number of lower federal courts will, and have, interpreted the Bruen decision in ways that permit the upholding of laws that are constitutionally dubious under the Second Amendment. This is not surprising. The manner in which many lower federal courts addressed Second Amendment claims after Heller shows a reluctance by lower federal courts to vigorously enforce the Second Amendment. The question is now whether the Supreme Court will regularly take up Second Amendment cases in order to ensure that the Second Amendment framework it developed in Bruen is followed by lower courts. After Heller and McDonald were decided, the Supreme Court did not hear another Second Amendment case for over a decade. It seems unlikely that the Supreme Court will do the same thing after Bruen, but only time will answer that question.

The right to bear arms is a fundamental part of our American identity. It’s a right that allows us to protect ourselves and our families, and it’s a freedom that underscores the importance of individual liberty. However, this freedom is not without its challenges and controversies. The Law Offices of George M. Sanders is committed to defending your Second Amendment rights against any infringement. For more information or to schedule a consultation, please reach out to us today.

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