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Federal judge — somewhat reluctantly — upholds California law banning billy clubs

California's longstanding ban on billy clubs passes constitutional muster. (Dreamstime/TNS)

A San Diego federal judge ruled on Wednesday that a California law banning possession of a baton or billy club is constitutional, noting the prohibition’s longstanding nature of being on the books for more than a century.

The decision is the latest from U.S. District Court Judge Roger Benitez, who has been given jurisdiction over several cases filed in recent years challenging the state’s strict laws regulating weapons. All but this lawsuit have involved firearms.

The lawsuit, filed in 2019, takes aim at California’s law making it illegal to possess an “instrument or weapon of the kind commonly known as a billy.”

While the law doesn’t explicitly define a billy, courts have determined it to be any kind of stick, bat or baton that is intended to be used as a weapon. For instance, a baseball bat at a Little League game would not be deemed illegal, but it could be at a riot, or “in circumstances where possession demonstrates an immediate atmosphere of danger,” according to a previous court ruling.

The suit was filed by a pair of military veterans who argued they wanted to own batons for self-defense and that their inability to do so under state law violated their Second Amendment right to bear arms.

In his 29-page order, Benitez upheld the ban — but somewhat reticently.

In analyzing the case — based on dueling motions for summary judgement by the veterans and the state attorney general — Benitez said he was bound by legal precedent to first consider whether the law in question is deemed longstanding.

It is, the judge concluded. Benitez noted the law has been around since 1917 in California, and even longer in some states.

“Because the 104-year-old state law qualifies as ‘longstanding,’ it is a permissible restriction on a dangerous, but less-than-lethal, unusual weapon,” Benitez ruled.

Under 9th U.S. Circuit Court of Appeals precedent for deciding Second Amendment cases, the analysis ends there, Benitez said.

But the judge also identified several gray areas in the law.

What qualifies as longstanding in this sense “lies in an area where maps are yet to be drawn,” he wrote.

He also expressed discomfort with having to end his constitutional analysis at the first step.

“Why should a longstanding regulation be kept permanently beyond the reach of constitutional review?” he wrote. By continuing to uphold firearm restrictions without further analysis, “a longstanding firearm restriction may be left stuck in the past, only because it has not been challenged before the present.”

And he chided both parties for what he called a lack of evidence on whether the billy is considered commonly owned — a threshold question in many Second Amendment cases.

If the analysis hadn’t been cut short by controlling precedent, “the lack of evidence would probably have changed the outcome,” he wrote in a nearly page-long footnote. “The plaintiffs do not have to shoulder the burden of proving that they are entitled to enjoy Second Amendment rights. The command of the Amendment is that the right to keep and bear arms ‘shall not be infringed.'”

He continued: “Of course, whether this Court agrees or not, it is bound to follow binding precedent.”

While this ruling ultimately did not overturn the law, his expansive view of the Second Amendment echoes other rulings that have upended California’s stringent gun-regulation scheme.

In 2019, he overturned a ban on gun magazines that hold more than 10 bullets. In 2020, he blocked a voter-approved law requiring background checks for ammunition purchases. And this summer, he deemed the state’s ban on assault weapons unconstitutional, famously comparing an AR-15 rifle to a Swiss Army knife.

He name-checked those decisions in this ruling when considering whether a law was longstanding, noting the three gun-related laws were modern restrictions “with no historical pedigrees.”

All three cases are being appealed.


© 2021 The San Diego Union-Tribune
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