But it's important to remember that that's not what it says. It instead protects the right to bear "arms".
We know from context that "arms" doesn't mean the thing below your shoulder. We also know from context that it means at least certain types of guns. Since muskets and the like were what the colonists used.
But what about other things? Knives? Cannons? Missiles? Nuclear weapons? What exactly is covered by the Second Amendment?
The Appellate Division publishes an interesting opinion here. One that I haven't seen in this particular factual context before. I've seen lots of cases about knives. But never a Second Amendment case about a billy.
You're probably familiar with "billies" from the term "billy club". There's a California statute (Section 22210 of the Penal Code) that specifically says that you're not allowed to sell or possess a billy. Or, for that matter, a blackjack, sandbag, or sap.
The police catch David Liscotti with a billy. In particular, he took a wooden baseball bat, bore a hole in its center, filled the hole with a metal bolt, and wrapped the whole thing in nylon rope. A pretty neat weapon. Something with which Liscotti can definitely hurt someone.
They charge him with violating Section 22210. To which Liscotti responds -- fairly creatively -- that he has a Second Amendment right to bear the thing.
The Court of Appeal disagrees. Holding that, nope, you may have a right to bear a gun, but you've got no right to bear a billy.
I'm not too displeased with the result. I'm fairly sure that the Founders didn't intend to protect every type of creative weapon that one might craft.
I'll nonetheless mention that it's actually pretty difficult to reach this result under existing precedent. And the Appellate Division's attempt to distinguish controlling authority ain't entirely persuasive.
Under the Supreme Court's decision in Heller, the Second Amendment doesn't protect possession of "dangerous and unusual" weapons, but instead covers only those weapons that are "typically possessed by law-abiding citizens for lawful purposes." Purposes which include but are not limited to self-defense.
"Exactly," says Liscotti. "I kept the thing for self-defense. If anyone tries to attack me, I'll bash 'em with it."
The relevant inquiry, of course, is not Liscotti's subjective purpose, but rather whether weapons like these are typically (e.g., historically) possessed for lawful purposes; e.g., self-defense. Liscotti argues that that's undoubtedly the case. Even cavemen used clubs to bash people. Time immemorial.
To which the Appellate Division responds: "Although counsel argues in his appellant's brief that weapons such as these have been carried since the beginning of time, no evidence was introduced to that effect at the trial on this matter. Judicial notice of an important fact needs some substantiation based on evidence presented at a trial."
That seems a lame response to me. If I argued that guns have been used for centuries, would an appeals court (or the Supreme Court) say "Sorry, you didn't prove that fact, so we don't agree?" No way. There are certain things are are indisputably true. Including but not limited to the fact that clubs and guns and the like have been used forever. It's just silly to say there's "no proof" of that. We can legitimately take judicial notice of it.
The Appellate Division further says, "as an aside," that "historically, it appears to this court that billys, as used by the cavemen, were used primarily for hunting and for defense against animals, not as weapons for self defense against other cavemen. Or, if they were used against other cavemen, it was probably an escalation in use of force to gain an advantage, which would now be unlawful self defense."
I disagree with both of those sentences. I'm darn sure that billies -- and I think that's the correct spelling of the plural form of "billy," rather than "billys" as used by the Appellate Division, but I'm far from confident of that fact -- were often used to bash animals. But I'm also certain, sadly enough, that they've been used for centuries (indeed, millennia) to bash other people in the head as well. Particularly by people without access to other forms of weaponry.
Don't believe me? Check out Braveheart. (But be forewarned that it's pretty gory.) See all those clubs? See all those clubs hit other people? Lots of clubbing. Long history of it.
Plus, to me, if you're a caveman and are out to hunt (or defend yourself against) an animal, you probably use a spear or a bow. Not a club. By contrast, a club's pretty good for hand-to-hand combat. Whereas it's not so hot against, say, a lion.
Nor do I agree that when clubs "were used against other cavemen, it was probably an escalation in use of force to gain an advantage, which would now be unlawful self defense." You know why? Because when that other caveman came into your cave, guess what he was probably holding? That's right. A freaking club. To take your food, your spouse, your children, or just to bash you in the head with. It's not an "escalation" to protect yourself with a club against some other guy with a club. Or even against a guy with only a rock. It's totally fine. Even under the old-style Law of the Cave.
Don't believe me? It's not just cavemen who carry a club. Think about the modern era. I'll bet you a huge amount of money that throughout California, there are a huge number of clubs leaning against nightstands, in closets, by the door, and in similarly accessible places. We call those clubs "baseball bats". I've got one in my closet. Yes, I use it for baseball. Also. But trust me when I say that on those rare occasions I've held it in my hand at 2:00 in the morning, it wasn't because I was heading to the batting cages. It was because it is -- and long has been -- a lawful weapon for lawful self-defense.
And I bet I ain't the only one who has so employed it. Far, far from it.
For this reason, I simply disagree with the Appellate Division when it says that a billy can't be (and normally isn't) used for lawful self-defense. It is. So you can't avoid the Second Amendment that way.
So might reach the same result in two alternative bases. You might say that a prohibited "billy" under the statute is something more than a club. So that even if clubs are protected, billies aren't.
I might be okay with that. The only problem being that the only definitions of a billy that I can find define the word it as a "club or heavy stick." Which would include your ordinary, unmodified baseball bat. So if that's what the statute in fact means, it may indeed have a problem.
You might alternately say that even if the Second Amendment covers some billies, it doesn't cover this one. That argument strikes me as more plausible. I agree that most "lawful" citizens don't go around boring holes in baseball bats and wrapping them in nylon just for self-defense. That seems more typical of someone who really likes to use the thing. Perhaps someone like Liscotti.
So that argument I could get my head around. Although it's different than the one the Appellate Division makes.
(You'd also have to deal with the fact that at least some lawful people might in fact deliberately modify their bats to make 'em more powerful despite the fact that they're purely used for self-defense. I don't know how much "lawful" use is required before something's protected as an "arm". For example, I am confident that lots of people use guns illegally, and that some guns -- I'm thinking of things like MAC-10s, for example -- may be predominantly used by criminals. But that lots of people use something improperly doesn't mean that it's no longer an "arm" under the Second Amendment, right?)
So I think the Appellate Division reaches the right result here. But its reasoning seems quite a bit overbroad, as well as factually way off the mark.
One other overstatement's worth mention, and may typify the type of analysis with which I have a problem. The Appellate Division says that Liscotti's billy "appears to be the type of tool that a brawl fighter or a cowardly assassin would resort to using, designed for silent attacks, not a weapon that would commonly be used by a good citizen."
I totally agree with the "brawl fighter" part. I completely disagree with the "cowardly assassin" part. As far as I'm aware, there are lots of tools in your typical assassin's standard arsenal -- guns, knives, poison, etc. -- but as far as I'm aware, a billy ain't one of 'em. Moreover, if an assassin decided to take someone out by hitting them with a baseball bat, that may be many things, but "cowardly" is not the word that comes to mind. Shooting someone in the back, whacking them with a high-powered rifle from a quarter mile away, sneaking poison into their drink: Those I might define as cowardly. But an assassin who stands up to a government leader with a baseball bat -- even one with a metal rod inside of it -- and who says "Bring it on!", well, that's not a cowardly assassin. More like a badass.
Not that I'm condoning assassination. But I'm not sure that they really employ baseball bats, and not at all sure that it'd be at all a cowardly way of doing things if they did.
