Denver, Colorado — December 1, 2021 — Does the mere longevity of a law lend that law automatic constitutional legitimacy?
The Ninth Circuit of Appeals wrongly concluded as much, based on a deeply flawed misreading of the Supreme Court’s landmark decision in D.C. v. Heller. In the Ninth Circuit any “longstanding” law is not just presumed constitutional, but rather is conclusively deemed constitution, by mere virtue of its longevity. But now, two California military veterans, Russell Fouts and Tan Miguel Tolentino, are testing that thesis by challenging the validity of California’s ban on certain club-like weapons that has been moldering on the books since 1917.
The challenge failed in a lower court because the judge, bound by Ninth Circuit precedent, found that the law’s longevity created an unrebuttable presumption that it was constitutional. But Russell and Tan have appealed and Mountain States Legal Foundation’s Center to Keep and Bear Arms this week filed an amicus curiae brief urging the Ninth Circuit to hear the challenge.
CKBA believes the ban denies Californians their Second Amendment protected rights because the Founders defined “arms” much more broadly than just firearms. Worse, the Ninth Circuit’s rule establishing that all “longstanding” regulations are per se constitutional is not only a misinterpretation of Supreme Court precedent, but results in courts rubberstamping “longstanding” unconstitutional infringements on the People’s right to keep and bear arms.
CKBA also is entering the fray to take issue with this misinterpretation of case law that wrongly presumes “longstanding” laws to be constitutional merely because they’ve been on the books a long time but never received the judicial scrutiny they may well deserve.
Follow this link to read the case page.
Follow this link to read MSLF’s brief.
“The People have the natural right to choose the self-defense tools they deem necessary, whether those are firearms or other kinds of weaponry,” says CKBA Director Cody J. Wisniewski. “California’s ban on clubs and other blunt weapons is an unconstitutional infringement of this right and cannot be upheld merely because it may be viewed as ‘longstanding.’”
In the lower court ruling, summary judgment was granted to California’s Attorney General based on Ninth Circuit precedent that requires judges to uphold “longstanding” arms regulations as lawful. In their appeal, the plaintiffs continue to maintain that billy clubs are protected arms, while also raising the issue of whether the district court erred in finding that the law in question was “longstanding” and immune from challenge on that basis.
“The Ninth Circuit Court of Appeals must correct its erroneous precedents and clarify that such a law is not automatically constitutional merely because it is ‘longstanding,’” said Wisniewski. “The Circuit must remand this matter to the district court to allow the court to rebut the presumption of constitutionality.”