Case Summary
Americans have a natural, constitutionally protected right to choose the self-defense tools they deem necessary, whether that’s a firearm or some other form of weaponry. “Arms,” as in “to keep and bear arms,” meant something broader than just firearms to those who wrote and ratified the Second Amendment to the U.S. Constitution, even if that tends to be forgotten by too many contemporaries. That term encompassed bladed weapons, like knives, swords, hatchets, bayonets, and tomahawks, plus even more primitive, club-like arms.
Unfortunately, the proponents of gun control are also eager to regulate these other kinds of “arms” as well.
California, for instance, has, for more than a century, imposed a near-universal ban on the possession of certain club-type weapons, including so-called “billy clubs,” exempting only police and certain security guards from owning them. This, in our view, is an unconstitutional infringement of the Second Amendment. But the district court refused to even evaluate the law because, in the Ninth Circuit, courts automatically consider any “longstanding” law to be constitutional. The Ninth Circuit claims that they are applying Heller, but in reality, Heller implies that certain “longstanding” regulations may be presumed to be constitutional. The presumption must be rebuttable. Without allowing individuals to seek to prove even longstanding regulations are not constitutional the Ninth Circuit may inadvertently rubber-stamp longstanding infringements on people’s rights, rather than uphold constitutional regulations.
Now two military veterans, Russell Fouts and Tan Miguel Tolentino, are suing California’s attorney general to challenge this unconstitutionally “longstanding” ban. MSLF’s Center to Keep and Bear Arms has filed a brief supporting Russell and Tan, arguing that the mere longevity of such a law is no guarantor of its constitutionality or legitimacy.
Join the Fight
Since 1977, MSLF has fought to protect private property rights, individual liberties, and economic freedom. MSLF is a nonprofit public interest legal foundation. We represent clients pro bono and receive no government funding. Make your 100% tax deductible contribution today and join the fight.
Case History
Under a 1917 law, the possession of billy clubs is almost entirely illegal in California. Worse, the state has failed to define what exactly constitutes a billy club, and thus bans many commonly owned items if they’re possessed with some ascribed “intent” to use them as weapons or for self-defense.
Russell Fouts and Tan Miguel Tolentino are California military veterans who wish to possess certain billy-like weapons for self-defense. In September, 2019, Fouts and Tolentino sued the state’s Attorney General in the Southern District of California, alleging that the ban violates their Second Amendment protected rights.
Among other arguments, the state countered that the ban on billy clubs was “longstanding”—which would suffice for the law to be upheld in the Ninth Circuit, based on that circuit’s deeply flawed interpretation of the U.S. Supreme Court’s D.C. v. Heller decision.
In September 2021, the District Court ruled in favor of California. The Court found that the law in question was indeed “longstanding,” and thus had to be upheld under Ninth Circuit precedent.
Russell and Tan immediately filed an appeal to the Ninth Circuit, maintaining that the District Court was wrong to uphold the law merely as “longstanding” without further analysis of Second Amendment issues. They also continue to argue that the clubs are constitutionally protected arms.
MSLF’s Center to Keep and Bear Arms has filed an amicus curiae brief in support of their appeal, arguing that while Heller mentioned a non-exhaustive list of longstanding regulations as being “presumptively lawful,” that presumption is rebuttable. The mere fact that a regulation is longstanding does not mean that it is constitutional, or that the regulation does not violate Second Amendment-protected rights. Instead, the court must look to historical evidence to determine if the “presumption” of lawfulness is rebutted—which is the case here.
This case was remanded to the district court for further proceedings, consistent with the US Supreme Court’s decision in NYSRPA v. Bruen. Briefing then occurred before the US District Court for the Southern District of California.
On February 23, 2024, with Bruen now providing the legal framework to consider the question, the court overturned California’s ban, ruling that it “unconstitutionally infringes the Second Amendment Rights of American citizens.” The California Attorney General has already filed a notice of appeal to the Ninth Circuit.