Tom recently reported on Friday’s late-breaking news concerning a decision out of California concerning “billy clubs.” The case, Fouts, et.al. v. Bonta, received a 25 page opinion from Judge Roger T. Benitez, and it really doubles down on what Second Amendment advocates and activists already know, “every law-abiding responsible individual citizen has a constitutionally protected right to keep and bear arms like the billy for lawful purposes.”

The question posed was noted in the introduction of the opinion as well as some framework on the banned items:

This case is about a California law that makes it a crime to simply possess or carry a billy.  This case is not about whether California can prohibit or restrict the use or possession of a billy for unlawful purposes.  The law does not define a “billy.”

Historically, the short wooden stick that police officers once carried on their beat was known as a billy or billy club.  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. 

The opinion is consistent with holdings we’ve already seen and read in opinions from the U.S. Supreme Court, such as Heller, which observed “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” The enjoining of a law banning billy clubs not only meets that Heller standard, but further it exceeds it…billys were around at the time of our founding, as well as dating back to when we as human beings started using our opposable thumbs.

Benitez stated:

Americans have an individual right to keep and bear arms, whether firearms or less lethal arms. The Second Amendment to the United States Constitution “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” The Second Amendment is incorporated against California through the Due Process Clause of the Fourteenth Amendment. Some people have made the personal decision to not keep and carry a deadly firearm for self-defense.  Instead, they sometimes wish to keep or carry a less lethal arm for self-defense.  Plaintiffs are two such citizens.

Much like in Caetano v. Massachusetts, the rationale of making less-than-lethal options illegal while allowing lethal options, was called into question. “The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself,” the Caetano SCOTUS GVR/opinion noted. “To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life.”

In a striking comparison to Caetano, it was said in the Fouts opinion that a female who elected to arm herself with a less-than-lethal option should she need to defend herself found herself in a similar legal quagmire.

Although there is no evidence that she has ever struck or threatened to strike anyone with the baton or that she is in danger of hurting herself with it, her mere possession of it is enough.  That she was in possession of the billy to protect herself in self-defense from human or animal predators is not determinate.  It is irrelevant.  And why does California elect to make this girl a criminal?  Because there is a risk, no matter how small, that the girl might use it for an unlawful purpose, or that others may use similar weapons for unlawful purposes.  The United States Constitution prohibits such intrusions into an otherwise law-abiding citizen’s choice for self-defense.

The plaintiff in Caetano v. Massachusetts, 577 U.S. 411 (2016), used a less than lethal stun gun to protect herself.  The Supreme Court held that her use of the stun gun was protected by the Second Amendment for her self-defense.  “By arming herself, Caetano was able to protect against a physical threat that restraining orders had proved useless to prevent.  And, commendably, she did so by using a weapon that posed little, if any, danger of permanently harming either herself or the father of her children.”  Id. at 413 (Alito, J. concurring).  If our hypothetical schoolgirl or the Plaintiffs in California choose to have a billy for self-defense, they will find themselves in the same unenviable position of Ms. Caetano, who “[u]nder Massachusetts law . . . Caetano’s mere possession of the stun gun that may have saved her life made her a criminal.” Id.

The overturning of this prohibition will have an eddy effect. There are jurisdictions, such as New Jersey, where it’s illegal to preemptively arm oneself with a weapon that’s not said in statute specifically to be appropriate for self-defense – such as knives, batons/billy clubs, and pepper spray greater than 3/4's of an ounce, etc. While this decision only directly impacts the jurisdiction of the Southern District of California, that does not change the facts that were presented in Benitez’ opinion. The concept of general arms prohibitions is going to quickly become a total thing of the past.

The conclusion of Benitez’ opinion laid waste to any arguments as to why less than or non-lethal self-defense options – or any arms for that matter – should be prohibited.

The Second Amendment protects a citizen’s right to defend one’s self with dangerous and lethal firearms.  But not everybody wants to carry a firearm for self-defense.  Some prefer less-lethal weapons.  A billy is a less-lethal weapon that may be used for self-defense.  It is a simple weapon that most anybody between the ages of eight and eighty can fashion from a wooden stick, or a clothes pole, or a dowel rod.  One can easily imagine countless citizens carrying these weapons on daily walks and hikes to defend themselves against attacks by humans or animals.  To give full life to the core right of self-defense, every law-abiding responsible individual citizen has a constitutionally protected right to keep and bear arms like the billy for lawful purposes.  In early America and today, the Second Amendment right of self-preservation permits a citizen to “‘repel force by force’ when ‘the intervention of society in his behalf, may be too late to prevent that injury.’” The Founders of our country anticipated that as our nation matured circumstances might make the previous recognition of rights undesirable or inadequate.  For that event, the Founders provided a built-in vehicle by which the Constitution could be amended, but a single state, no matter how well intended, may not do so, and neither can this court.

Fouts, et.al. v. Bonta was litigated by attorney Alan Beck. Beck, known for being a fierce litigator with a stockpile of victories, has also recently signed on to help flood victims find relief. Beck was responsible for seeing the end to many prohibitions on electronic arms throughout the country, as well as many other high-profile cases such as Young v. Hawaii. When I reached out to Beck for comment about the case, he said “It neither makes for good public policy nor is it constitutional to ban what is essentially a stick within a person's home.”

This is another victory that’s chipped away at California’s draconian reign on its citizens. Slowly the people of the Golden State will be liberated from the strangle of control and thankfully there are originalist judges such as Roger Benitez on the bench and litigators like Beck, with a warrior spirit and firm understanding of the law of the land.