Ban of Blackjacks, Billy Clubs, and Batons to go before Ninth Circuit

Early 20th Century police batons in Edingburg Police Centre Museum by Kim Traynor, CC BY-SA 3.0, via Wikimedia Commons

U.S.A.-(AmmoLand.com)- 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 judgment 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 judgment 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 possession 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 prohibit 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 likelihood of an Amy Coney Barrett 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 judgment. We will not know until well after the election, as the hearing for summary judgment is scheduled for December 7th.

It seems appropriate it will be on Pearl Harbor day.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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Gomezaddams51
Gomezaddams51
1 month ago

I solved the problem. I bought a “City Stick” from Cold Steel. I carry it with me at all times. I have bad knees so I need a came to walk so it is perfectly legal. It can break cinder blocks so should be useful to dot the eye of some idiot who tries to get in my face. There are quite a few self defense canes out there so if they ban all clubs, batons, etc. There are still options.

Gomezaddams51
Gomezaddams51
1 month ago
Reply to  Gomezaddams51

Forgot to add, they do sell sword canes but rather than deal with PoPo stupidity, mine does not have a sword inside. I do have a couple of sword canes though… I also have a club with spikes right inside my door. Good first option till I can get to my swords or guns…

Last edited 1 month ago by Gomezaddams51
JPM
JPM
1 month ago

Once all the weapons are gone they will go after offensive words and evil looks.

American Patriot
American Patriot
1 month ago
Reply to  JPM

Whoops…..Too late.

JPM
JPM
1 month ago

Yep, it’s called political correctness.

Dr. Strangelove
Dr. Strangelove
1 month ago

Trump has infused the ninth circus court with conservatives, they’ve been striking down a lot of liberal wet dreams. So, there is hope for this.

Watch um
Watch um
1 month ago

Nothing wrong with having a good walking cane or a staff to aid you in your daily business, and I am sure we all love to play baseball and have a special baseball bat, just make sure you have your baseball glove in the back seat of your car.

Dr. Strangelove
Dr. Strangelove
1 month ago
Reply to  Watch um

Cold Steel makes some excellent sword canes that are indistinguishable from a standard cane. Of course, they are illegal in many states, but if it comes down to it, it’s better to be judged by twelve.

Dr.BadTruth
Dr.BadTruth
1 month ago

Read the FBI stats… more people are killed with hammers and baseball bats … than guns…

items in this article aren’t even on the radar…

Jonesy
Jonesy
1 month ago
Reply to  Dr.BadTruth

Right. And I didn’t see Sticks and Stones mentioned.

Heed the Call-up
Heed the Call-up
1 month ago
Reply to  Dr.BadTruth

I have seen this false statement numerous times now. Below is the 2019 FBI UCR data. The truth is, not “guns”, but “Rifles and shotguns” kill fewer than “hands, feet and fists”, and “Rifles”, including the “feared” AR-15 and its variants, kill far few than “hands, feet and fists”. If you want to argue against “fake media”, its best not to use fake facts, the truth is more damning. Handguns . . . . . . . . . . . . . . . 6,194 Knives or cutting instruments 1,533 Rifles . . . . . . . .… Read more »

Last edited 1 month ago by Heed the Call-up
gregs
gregs
1 month ago

this just goes to show you that leftists and politicians do not want you to be able to protect yourself even with a less than lethal weapon.
they want protection for themselves not us. they will always make weapons permissible for them while regulating or banning us from the same.

Grigori
Grigori
1 month ago

I get that in a perfectly Constitutional country, we could carry whatever we like, whenever we like, wherever we like, and not need a damn permit to do it. I would never try to argue any differently. That said, in this far too imperfect system, I do take advantage of the permit system which allows me to carry most places without fear of being arrested for such. One of the many really dumb things about the permit system in most states, to include South Carolina, is that once you have jumped through the hoops and obtained legal blessing to carry… Read more »

Finnky
Finnky
1 month ago
Reply to  Grigori

Texas was like that when concealed carry license first came out. About the time we transitioned to LTC (concealed or open carry) knife laws were reformed. Now no license required to carry any blade. I can sling my bayonet equipped SKS and go grocery shopping if I want. Not sure about sword cane (concealed) but anyone can wear a fully functional sword or carry a spear or battle axe. Have yet to see anyone do so, so predicted blood in the streets certainly did not follow.

WI Patriot
WI Patriot
1 month ago

Whatever will I check my tires with…???

Dr. Strangelove
Dr. Strangelove
1 month ago
Reply to  WI Patriot

I use a ball peen hammer.

WI Patriot
WI Patriot
1 month ago

Problem with a ball peen hammer is that it doesn’t give that requisite “thump”…;)

Captain Witold Pilecki
Captain Witold Pilecki
1 month ago

Don’t trespass into my garage, because this little gem resides in the corner by my motorcycle.

I also have a shortened hickory sledgehammer handle hanging by a loop of paracord on my rollaway tool chest near the door to the house. These are just backups or in the rare case I am not wearing a firearm.

Skullmasher.gif
SEMPAI
SEMPAI
1 month ago

Well alrighty then Captain Negan, just tell me ya don’t call it Lucille..nice garage back up tho

Grigori
Grigori
1 month ago

Well, that is certainly one way to obtain a DNA sample!

Dave
Dave
1 month ago

Nothing like a good piece of hickory!