Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 1 of 73 21-56039 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RUSSELL FOUTS, et al., Plaintiffs-Appellants, v. ROB BONTA, in his official capacity as Attorney General of the State of California, Defendant-Appellee. On Appeal from the United States District Court for the Southern District of California No. 3:19-cv-01662-BEN-JLB The Honorable Roger T. Benitez, District Judge APPELLEE'S ANSWERING BRIEF ROB BONTA JOHN D. ECHEVERRIA Attorney General of California Deputy Attorney General THOMAS S. PATTERSON State Bar No. 268843 Senior Assistant Attorney General 455 Golden Gate Avenue, Suite 11000 MARK R. BECKINGTON San Francisco, CA 94102-7004 Supervising Deputy Attorney General Telephone: (415) 510-3479 Fax: (415) 703-1234 Email: John.Echeverria@doj.ca.gov Attorneys for Defendant-Appellee Rob Bonta, in his official capacity as Attorney General of the State of California Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 2 of 73 TABLE OF CONTENTS Page Introduction .................................................................................................... 1 Statement of Jurisdiction ............................................................................... 4 Statement of the Issue .................................................................................... 5 Statement of the Case .................................................................................... 5 A. Historical and Legal Background ................................... 5 1. History of Billies and Police Batons .................... 7 2. California's 104-Year-Old Restrictions on Billies .................................................................. 15 3. Law-Enforcement Exceptions to California's Billy Restrictions ............................ 17 B. Procedural History ........................................................ 18 Summary of the Argument .......................................................................... 20 Standard of Review ...................................................................................... 24 Argument ..................................................................................................... 24 I. California's Restrictions on Billies Do Not Burden Conduct Protected by the Second Amendment ...................... 26 A. California's Restrictions on Billies Are Longstanding Regulations that Do Not Burden Protected Conduct ......................................................... 27 B. Billies Are Not Typically Possessed by Law- Abiding Citizens for Lawful Purposes ......................... 39 II. Even If California's Restrictions on Billies Were Assumed to Burden Conduct Protected by the Second Amendment, They Would Be Subject to, and Satisfy, Intermediate Scrutiny .............................................................. 47 A. Intermediate Scrutiny Would Apply Because California's Billy Restrictions Do Not Severely Burden the Core Second Amendment Right ................ 48 i Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 3 of 73 TABLE OF CONTENTS (continued) Page B. California's Restrictions on Billies Withstand Intermediate Scrutiny.................................................... 52 1. Section 22210 Promotes Important Government Interests.......................................... 52 2. Section 22210 Reasonably Fits the State's Important Public-Safety Interests....................... 55 Conclusion ................................................................................................... 59 Statement of Related Cases.......................................................................... 61 Certificate of Compliance ..........................................................623 ii Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 4 of 73 TABLE OF AUTHORITIES Page CASES Binderup v. AG of United States 836 F.3d 336 (3d Cir. 2016) .................................................................... 38 Brodheim v. Rowland 993 F.2d 716 (9th Cir. 1993) ................................................................... 41 City of Seattle v. Evans 184 Wash. 2d 856 (2015) ...........................................................................6 Commonwealth v. Lanzetti 97 Pa. Super. 126 (1929) ......................................................................... 32 District of Columbia v. Heller 554 U.S. 570 (2008).......................................................................... passim Duncan v. Bonta 19 F.4th 1087 (9th Cir. 2021) ........................................................... passim Feldman v. Ariz. Sec y ofState's Office 843 F.3d 366 (9th Cir. 2016) ................................................................... 25 Fyock v. City of Sunnyvale 779 F.3d 991 (9th Cir. 2015) ............................................................ passim Heller v. District of Columbia 670 F.3d 1244 (D.C. Cir. 2011)......................................................... 29, 38 Jackson v. City & Cty. of San Francisco 746 F.3d 953 (9th Cir. 2014) ............................................................. 48, 51 John Doe No. 1 v. Reed 561 U.S. 186 (2010)................................................................................. 25 iii Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 5 of 73 TABLE OF AUTHORITIES (continued) Page Kanter v. Barr 919 F.3d 437 (7th Cir. 2019) .................................................................. 33 Koon v. United States 518 U.S. 81 (1996)................................................................................... 39 Lawrence v. State 475 Md. 384 (2021) ................................................................................. 32 Mai v. United States 974 F.3d 1082 (9th Cir. 2020) ................................................................. 26 Mai v. United States 141 S. Ct. 2566 (2021) ............................................................................ 26 McCullen v. Coakley 573 U.S. 464 (2014)................................................................................. 36 Nat'/ Rifle Ass 'n ofAm., Inc. v. Bureau ofAlcohol, Tobacco, Firearms & Explosives 700 F.3d 185 (5th Cir. 2012) ............................................................. 29, 36 Pena v. Lindley 898 F.3d 969 (9th Cir. 2018) ............................................................. 28, 56 People v. Baugh 20 Cal. App. 5th 438 (2018) .............................................................. 16, 41 People v. Bell 49 Cal. 3d 502 (1989) .............................................................................. 15 People v. Brite 9 Cal. 2d 666 (1937) ................................................................................ 10 People v. Brown 227 Cal. App. 4th 451 (2014) .................................................................. 16 iv Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 6 of 73 TABLE OF AUTHORITIES (continued) Page People v. Canales 12 Cal. App. 2d 215 (1936) ..................................................................... 16 People v. Davis 214 Cal. App. 4th 1322 (2013) ......................................................... passim People v. Fannin 91 Cal. App. 4th 1399 (2001) .................................................................. 11 People v. Grubb 63 Cal. 2d 614 (1965) ....................................................................... passim People v. King 38 Cal. 4th 617 (2006) ....................................................................... 15, 16 People v. Leffler 2018 WL 3974150 (Cal. App. Aug. 20, 2018) .................................. 7, 8, 9 People v. Liscotti 219 Cal. App. 4th Supp. 1 (2013) ............................................................ 50 People v. Makovsky 3 Cal. 2d 366 (1935) ................................................................................ 11 People v. Mayberry 160 Cal. App. 4th 165 (2008) .....................................................................6 People v. Mercer 42 Cal. App. 4th Supp. 1 (1995) .................................................................6 People v. Mulherin 140 Cal. App. 212 (1934) .............................................................. 7, 12, 16 People v. Ocasio 28 N.Y. 3d 178 (2016) ................................................................. 12, 31, 34 v Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 7 of 73 TABLE OF AUTHORITIES (continued) Page People v. Pendleton 79 Mich. 317 (1890) ................................................................................ 32 People v. Starks 130 N.E.3d 556 (2019) ...................................................................... 14, 35 People v. Williams 100 Cal. App. 149 (1929) ........................................................................ 11 Silvester v. Harris 843 F.3d 816 (9th Cir. 2016) ....................................................... 29, 31, 48 State ex rel. City of Princeton v. Buckner 180 W. Va. 457 (1988) ............................................................................ 32 State v. Blocker 291 Or. 255 (1981) .................................................................................. 45 State v. Brown 165 N.W. 520 (1917) ............................................................................... 32 State v. DeCiccio 315 Conn. 79 (2014) .................................................................... 44, 45, 46 State v. Kessler 289 Or. 359 (1980) ............................................................................ 45, 46 Taylor v. Kincheloe 920 F.2d 599 (9th Cir. 1990) ................................................................... 42 Teter v. Connors 460 F. Supp. 3d 989 (D. Haw. 2020)....................................................... 51 United States v. Fairlamb 535 F. Supp. 3d 30 (D.D.C. 2021)..................................................... 40, 54 vi Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 8 of 73 TABLE OF AUTHORITIES (continued) Page United States v. Henry 688 F.3d (9th Cir. 2012) .......................................................................... 39 United States v. Phillips 827 F.3d 1171 (9th Cir. 2016) ................................................................ 28 United States v. Sabol 534 F. Supp. 3d 58 (D.D.C. 2021) .................................................... 39, 53 United States v. Skoien 614 F.3d 638 (7th Cir. 2010) .................................................................. 28 United States v. Torres 991 F.3d 1253 (9th Cir. 2019) ................................................................ 47 Young v. Hawaii 992 F.3d 765 (9th Cir. 2021) ............................................................ passim Yukutake v. Conners __ F. 3d __, 2021 WL 3625307 (D. Haw. Aug. 16, 2021)................ 36, 37 CONSTITUTIONAL PROVISIONS United States Constitution Second Amendment ......................................................................... passim Fourteenth Amendment ................................................................. 7, 19, 31 STATUTES United States Code, Title 28 § 1291 .........................................................................................................4 California Business & Professions Code § 7585.9(a) ............................................................................................... 18 vii Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 9 of 73 TABLE OF AUTHORITIES (continued) Page California Penal Code § 12020 .............................................................................................. 16, 41 § 16590(m)..................................................................................................5 § 22210 ............................................................................................. passim § 22215 .................................................................................................... 18 § 22290 .......................................................................................................5 § 22295 .................................................................................................... 18 § 22295(a) ................................................................................................ 17 § 22295(b) ................................................................................................ 18 § 22295(c) ................................................................................................ 18 § 22295(g) ................................................................................................ 18 Colorado Revised Statutes § 18-12-101(a)(5)..................................................................................... 34 § 18-12-102(2) ......................................................................................... 34 § 18-12-102(4) ......................................................................................... 34 7 Ric. 2, 35, ch. 13 (1383) ............................................................................ 33 33 Hen. 8, ch. 6, § 1 (1541) .......................................................................... 33 720 Ill. Comp. Stat. 5/24-1(a)(1), (2) (2021) ................................................ 35 1763-1775 New Jersey Laws 346 ................................................................. 33 1837 Alabama Laws 7, § 2 ........................................................................... 33 1882 W. Va. Acts, Chapter 135, § 7 ............................................................. 32 1891 Oklahoma Sess. Laws 495, art. 47, § 1 ................................................ 32 1925 Nevada Stats. 1925, ch. 47 (1925) ....................................................... 31 1971 Colorado Sess. Laws, Chapter 121 ...................................................... 30 Act No. 129, Pub. Laws 1887 ....................................................................... 32 viii Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 10 of 73 TABLE OF AUTHORITIES (continued) Page Nevada Rev. Stat. 202.350(1)(a) .................................................................. 34 New York Penal Law § 265.01..................................................................... 34 New York Stats. 1909, ch. 93 (1909) .......................................................... 31 Pa. Act of 18th of March, 1875, Pub. L. 33.................................................. 32 Stats. 1917, ch. 145, § 1 ................................................................................ 15 Stats. 1923, ch. 339, § 1 ................................................................................ 16 Tenn. Code Ann. § 39-17-1307(a)(1)................................................................................... 34 § 39-17-1308(a)(7)................................................................................... 35 § 39-17-1308(a)(8)................................................................................... 35 ix Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 11 of 73 INTRODUCTION For over 100 years, California has prohibited the civilian possession of "any instrument or w eapon of the kind commonly known as a billy, " now codified at California Penal Code section 22210. Generally, a billy is a weighted club that is capable of being carried on the body and deployed as a less-than-lethal compliance tool or impact weapon. Billies began to appear in the United States around the mid- to late-1800s, about the same time that cities and counties began to form police departments, and billies were widely adopted as standard-issue police equipment. ER-22 23 (Order) (describing the growth of municipal police departments in the late 1800s and their adoption of the billy as part of the patrolman's standard equipment). At the same time, falling into the wrong hands, billies were increasingly used in crime and violence, gaining an early reputation as a weapon of the rogue or gangster. Throughout the late-nineteenth and early twentieth centuries, numerous states, including California, responded to the criminal use of billies by enacting various laws limiting their possession and use to law enforcement and prohibiting the same for civilians. As a result, billies remained tools of law enforcement and never came into common use among law-abiding civilians. California's restrictions on the civilian use and possession of billies has been in effect for 104 years. It applies to these law- 1 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 12 of 73 enforcement tools as they first appeared (e.g., straight wooden batons and leather models that have receded into history), as well as their modern equivalents, such as weighed expandable police batons composed of metal or composite materials. Plaintiffs, who wish to acquire and possess police batons prohibited under California Penal Code section 22210, challenge California's restrictions on billies under the Second Amendment. Their claims fail as a matter of law. California Penal Code section 22210 's restrictions on billies are constitutional at both steps of this Court's two -step framework for Second Amendment claims, which asks whether the challenged law burdens conduct protected by the Second Amendment and, if so, whether it satisfies the applicable level of heightened scrutiny. At step one, section 22210 does not burden protected conduct because billies have been the subject of longstanding, accepted regulation since their appearance and adoption for law-enforcement use. California and several other states have restricted the possession of billies since the early twentieth century, and state laws restricting certain uses of billies can be traced back to 1866 (corresponding with the development of municipal police departments). This tradition of regulating billies is sufficient to show that the challenged law does not burden conduct protected by the Second 2 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 13 of 73 Amendment as historically understood. Under this Court's precedents, section 22210 thus qualifies as a longstanding regulation that should be upheld " without further analysis." Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021) (en banc) (quoting Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016)), cert. petition filed, No. 20-1639 (May 25, 2021). Section 22210 is also constitutional at step one because billies are not "typically possessed by law-abiding citizens for lawful purposes," a prerequisite for a weapon to enjoy Second Amendment protection. See Fyock v. City of Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015) (citing District of Columbia v. Heller, 554 U.S. 570, 625 (2008)). The California Legislature elected to reserve billies for use by law enforcement, concerned that they were being used illicitly by criminals. Since the beginning of the twentieth century, billies have not been commonly used by law-abiding citizens for lawful purposes, and there is no evidence that the modern police baton is in common use for lawful purposes today. To the contrary, billies, including police batons, are specialized compliance tools capable of causing significant injury, or even death, and are properly reserved for use by trained law-enforcement personnel. Even if the Court were to proceed to step two, section 22210 would be constitutional under intermediate scrutiny. Intermediate scrutiny would 3 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 14 of 73 apply because the State's restrictions on billies do not impose a substantial burden on any core Second Amendment right. The law does not affect the range of weapons or everyday household items that may be lawfully possessed in the home and used for self-defense in lieu of a billy or baton from weapons protected by the Second Amendment (e.g., handguns) to blunt objects that are not even "arms" under the Second Amendment ( e.g., standard baseball bats). Under intermediate scrutiny, section 22210 reasonably fits the State's important public-safety objectives by providing police with tools like batons to be used for a wide variety of law- enforcement tasks (e.g., effecting arrests and maintaining crowd control), while ensuring that these tools are reserved for use by law-enforcement officers and are kept out of the hands of criminals. The district court properly granted the Attorney General's motion for summary judgment, upholding the constitutionality of section 22210, and this Court should affirm. STATEMENT OF JURISDICTION This Court has jurisdiction over this timely appeal from the district court's order granting the Attorney General's motion for summary judgment and denying Plainti ffs' motion for summary judgment, and entry of final judgment in favor of the Attorney General. See 28 U.S.C. § 1291. 4 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 15 of 73 STATEMENT OF THE ISSUE California restricts the civilian manufacture, importation, sale, transfer, and possession of the compliance tool known as a " billy," including the modern police baton. See Cal. Penal Code § 22210. Billies were adopted as a law-enforcement tool and have been subject to regulation since their appearance, dating back to at least the mid-nineteenth century. There is no evidence that billies are commonly possessed by civilians for lawful purposes. And California's restrictions promote important public-safety objectives by reserving billies, including police batons, for law-enforcement use and reducing their use in crime. Do California's restrictions on billies comport with the Second Amendment? STATEMENT OF THE CASE A. Historical and Legal Background With exceptions for law enforcement, California prohibits any person from manufacturing, importing, keeping, selling, or possessing: any leaded cane, or any instrument or weapon of the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slungshot . . . . Cal. Penal Code § 22210 (emphasis added). A "billy" is designated as a "generally prohibited weapon," id. § 16590(m), and a "nuisance" subject to confiscation and summary destruction by law enforcement, id. § 22290. 5 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 16 of 73 California's restrictions on billies apply to the civilian possession of a police baton, which qualifies as an "instrument or weapon of the kind commonly known as a billy" under section 22210. People v. Mercer, 42 Cal. App. 4th Supp. 1, 6 (1995); SER-87 (65 Cal. Att'y Gen. 120 (1982) (Op. 81-805) (1982)) at 2.1 1 California Penal Code section 22210's restrictions on billies have also been interpreted to apply to "ordinarily harmless objects," but only if "the circumstances of possession demonstrate an immediate atmosphere of danger." People v. Grubb, 63 Cal. 2d 614, 621 (1965), superseded on other grounds by statute. An ordinarily harmless object will not qualify as a prohibited billy absent evidence that the defendant "would use the object for a dangerous, not harmless, purpose," based on a consideration of the time, place, and manner of possession, including any "alteration of the object from standard form." People v. Davis, 214 Cal. App. 4th 1322, 1327 (2013) (a modified baseball bat with drilled holes and a leather wrist strap qualified as a billy); see, e.g., People v. Mayberry, 160 Cal. App. 4th 165, 171 72 (2008) (a "standard workout glove containing a small amount of sand, even when used as a weapon," was not prohibited under section 22210). A defendant may rebut evidence that an ordinarily harmless object was a billy prohibited under section 22210 with evidence of "innocent usage." Davis, 214 Cal. App. 4th at 1327. Plaintiffs do not challenge this particular interpretation of section 22210, as they do not seek to possess such improvised billies, and they do not assert that this interpretation of the statute would burden the Second Amendment. Section 22210's prohibition of"ordinarily harmless objects" being used as billies would not burden the Second Amendment because such objects are not "arms" subject to Second Amendment protection. See City of Seattle v. Evans, 184 Wash. 2d 856, 872 (2015) (a kitchen knife is not a protected arm under the Second Amendment). 6 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 17 of 73 1. History of Billies and Police Batons A " billy" is historically understood to be a specialized club, capable of being carried on the person, and widely adopted by law enforcement as a compliance tool or impact weapon. Generally speaking, the term "billy" referred to "a policeman's club." People v. Mulherin, 140 Cal. App. 212, 216 (1934); see also Mercer, 42 Cal. App. 4th Supp. at 5 ("Webster's New World Dictionary defines a 'billy' as 'a club or heavy stick; truncheon, esp. one carried by a policeman."' (citation omitted)) ; People v. Leffler, No. B283175, 2018 WL 3974150, at *2 (Cal. App. Aug. 20, 2018) (noting that a "billy" or "billy club" is also known as "a policeman's truncheon") ; ER-78 (Compl.) ¶ 35. The billy i.e., "police officer's club, mace, truncheon, nightstick, or baton"-"is as old as the [law-enforcement] profession itself," SER-4, and in the nineteenth and twentieth centuries, soon became "the signature tool of early police officers" in the United Kingdom and, later, the United States, see SER-4- 8 (discussing the founding of London's first police department in 1829 and early use of billies).2 The following image depicts a collection of 2 See also SER-26 48 (1967 Federal Bureau of Investigation Handbook on Technique and Use of the Police Baton); ER-21 (Order) (noting that "when the fourteenth Amendment was ratified" in 1868, "the 7 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 18 of 73 decorated nineteenth century policeman's billies from the U.K., showcasing their variety and unique attributes: SER-7 (depicting collection of nineteenth-century billies); see also id. at SER-8 (depicting collection of billies presented to NYPD officers). In the United States, some larger cities and some counties began forming police departments as early as the mid-1800s. ER-23 (Order) (discussing creation of police departments in Boston in 1839, New York City in 1845, and Los Angeles in 1889). In this country, the billy was originally adopted for law-enforcement purposes at approximately the same time as the growth of municipal police departments. See SER-4 ("Billy billy was only beginning its arc of popularity with policemen as the establishment of municipal police departments began to spread"). 8 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 19 of 73 clubs were the first less-lethal weapon used by police officers to subdue criminals and maintain public order."). Police officers' billies were made of a variety of materials and varied in size and shape. They could be wooden as in the preceding images of police billies. See People v. Leffler, No. B283175, 2018 WL 3974150, at *2 (Cal. App. Aug. 20, 2018) (describing a "billy" as " a heavy, usually wooden weapon for delivering blows; a short, stout stick used mainly by police officers to defend themselves when necessary, and which may also be known as a baton or truncheon" (internal citations omitted)); ER-78 (Compl.) ¶ 35. Billies were also constructed with other materials, including leather, rattan, and lead shot, as illustrated in the following excerpt from a 9 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 20 of 73 1910 hardware store catalog, advertising certain billies sold by the dozen as "Police Goods": POLICE GOODS BEAN'S PATEN T FLEX I BLE POLICE CLUBS The Club is made of Sole Leather, cut to required F orm, and brought togelhcr under heavy Pressu re 0\·er Elastic Steel Spring \\ira. and Riveted, and covered wiLh the same Materia l, secu ring 8. pcrfoct Surface wiLl1out Break or Scam, and very s lightly Elast ic; over this.to H andle, a Cover is neatly Braided . A Swivel is secured in the end, throug h which the Strap is passed. It is NcatandOrnamcntal,haua in the Hand, and a Firmer Grip can be had upo n it tha n on any \Vooclen Club. It cannot be broke n, and will last a Lifetime. It has lxtt tested, a nd is Endorsed as a t once the most Effective and Humane Club in use. Adopted by many ProQlinent Police Depanmcotut Abroad . Every Club Fully Warranted. Diameter ]J:J inches, All Lengths No. B4--Length 8 inches; \Veight 9 ozs . . . ... '' .......... ' ... ........... ...... IUt No. B5-Lcogth 10 inches; ~ 'eigh t 10 ozs.... . ......•. .. .....•. . .. , ...... ......... ..... ......... llt No. 88-Length 12 inc hes; \Vcig ht 12 ozs.... .. ... .... . .......... . • . . · · ········ ................. ... 15.II No. B7-Leogtb 14 inches; \Veight 14 ozs.... . . . . . . • . . . . . . . • • . . . . . . .......... .• •.. ···· · ···•• • ·• .. .. , ..... ...... I.II Loose Good Quality Cowhide ; Shot Loaded; Linen Sewed; 9 inch Cowhide Sling Per Dozen J No. 1-Length 8½ in.; Russet Color; Weight per Doz. 7 lbs ...... . $!1.80 No. 2-Length 9½ in.; Black Color; Weight per Doz.8/lllio ... No. 3-Solid Lead Ball; Russet Cowhide Leather, Covered; St Per Rattan Hand le ; Co\·ercd wi t h Braided Leat her; 8 in. Cow- iff D oze n hide Sljng; Length 0£ Billie 8 in.; \Veight per D oz:. 3½ lbs .. $18.00 I No. Solid Lead Ball; Russet Braided Co• •hideLeathcr, C Flexible Braided Leather Ha ndle; 71) in. Ray,•hiie Length of Billie 9½ in.; Weight per Doz. 5½ lbs ....... Loose No. 5-Solid Lead Ball ; Braided Russet Sheepski n, Covered: FfeC:- Dozen I No. 6---Solid Lead Ball; Braided Black Sheepskin, Co,~"'1; ible Rattan Handle; Braided Leather Covered; 7J1 in. ible Ratta n Handle; Braided Black Linen Thread, C hecpsk1 n ling ; Length or Rillie 7½ in.; \\"eig ht per Dozen . 3½ l bs. . . . .. .. . .. .. . . . . . . $!1.80 8½ in. Braided Linen Cord Sling ; Length of Bill~ 7!, Weight per Dozen 5¾ lbs ... . ....................... . H al £ Dozen in a Box Norvell-Shapleigh Hardware Co., St. Louis, Catalog, at 2980 (1910) (advertising leather billies);3 see also People v. Brite, 9 Cal. 2d 666, 681 3 This excerpt was obtained from the St. Louis Mercantile Library, University of Missouri-St. Louis. See also Robert Escobar, Saps, Blackjacks and Slungshots: A History of Forgotten Weapons (2018), at loc. 71 (ebook). 10 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 21 of 73 ( 193 7) (describing the billies of two police officers as "flexible and made of soft leathern material," with one end shaped like a bulb and containing shot). Billies had practical offensive and defensive uses, but they were also a symbol of the officer's government-sanctioned power, which had its own deterrent effect. Early police officers in Baltimore, for example, were known to twirl their billies while walking their beats, an "implied threat of violence would often stop a fight before it even started." SER-12. In the mid-1800s and early 1900s, as law-enforcement use of billies expanded, billies fell into the hands of criminals, gaining a reputation for illicit use and along with other impact weapons such as blackjacks, saps, and slungshot4-became part "of the arsenal of the 'public enemy,' the 4 There is substantial overlap among billies, blackjacks, saps, slungshots, and the other impact weapons identified in California Penal Code section 22210. The "blackjack" has been referred to as "a small leather-covered club or billy, weighted at the end, and having an elastic shaft." People v. Williams, 100 Cal. App. 149, 151 (1929) (citation omitted); see also People v. Makovsky, 3 Cal. 2d 366, 268 (1935) (noting that "there is, according to the testimony, little if any difference between a billy and a blackjack, and the possession of either instrument is denounced by the statute"). The "sap" has been defined as "[a] club, a blackjack, a hose containing rocks in the middle, or any other object generally used as a bludgeon." Mayberry, 160 Cal. App. 4th at 171 (citation omitted). A "slungshot" is a "small mass of metal or stone fixed on a flexible handle, strap or the like, used as a weapon." People v. Fannin, 91 Cal. App. 4th 1399, 1402 (2001) (citing People v. Williams, 100 Cal. App. 149, 151 (1929)). All of these weapons are "short, easily concealed upon the person 11 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 22 of 73 'gangster."' Mulherin, 140 Cal. App. at 215; see also Makovsky, 3 Cal. 2d at 368 (describing undercover operation to procure blackjacks and billies from store operator). This criminal arsenal threatened public safety and law- enforcement officers. See Escobar, supra note 3, at loc. 1192 (noting that a "generational war between cops and [gangs] escalated" in New York and San Francisco in the nineteenth century, involving "everything from blackjacks to sandbags" ). Faced with the cooption of the billy and related tools by criminals, many States instituted restrictions on the civilian use and possession of billies. See infra at pp. 31 32 (listing state regulations of billies). The billy in its initial form is now a law-enforcement relic. ER-25 (Order) (describing the billy as "an arm that has come and gone out of fashion"). Over time, improvements in weapons technology led to its replacement by the modern police baton. See People v. Ocasio, 28 N.Y. 3d 178, 181 (2016) (noting that "technological advances throughout the years have resulted in modifications to the traditional wooden billy," including the development of metal or synthetic batons); ER-10 (Order) (noting that a and so weighted as to constitute effective an d silent weapons of attack." Mulherin , 140 Cal. App. at 215 ( stating that these weapons "belong to a certain species of weapon having so many characteristics in common that their slight differences are unimportant"). 12 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 23 of 73 "'billy' is an old name given to an old wooden police tool, while the collapsible metal baton is a modern police invention "); SER-12 13 (describing development of side-handle and expandable batons). Fixed- length and expandable police batons modern versions of the original policeman's billy-are used by peace officers in California for law- enforcement use. ER-49 50 (Fichtner Decl.) ¶¶ 14 18 (depicting examples of fixed-length and expandable police batons).5 Fixed-length batons were introduced to American law enforcement in the early 1970s, including the side-handle Monadnock PR-24 that was widely adopted by the Los Angeles Police Department. SER-12. Such batons are capable of offensive and defensive uses and can be used to control a suspect. Id.; ER-49 (Fichtner Decl.) ¶ 15 (depicting PR-24 baton). Expandable batons were also introduced to American law-enforcement agencies in the 1970s, most notably the expandable batons developed by ASP, Inc. SER-12. The ASP expandable baton is discrete and easily concealable in its " closed," collapsed position, but can be quickly extended 5 As the district court observed, the Attorney General submitted the testimony of an expert witness specialized in the functionality and use of police batons, particularly the ASP expandable baton, ER-22 n.18, and the court elsewhere cited the expert's testimony concerning police batons, see ER-23 n.19 (citing Fichtner Decl. ¶ 14). 13 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 24 of 73 and deployed to obtain compliance from, or engage, a subject. See People v. Starks, 130 N.E.3d 556, 563 (2019) (noting that defendant's metal police baton was "eight inches long when collapsed," could "extend forcibly and instantly to 21 inches when the user flicked his wrist," and was weighted and thicker at one end); ER-50 51 (Fichtner Decl.) ¶¶ 19 20. Expandable batons can be set to different lengths to serve different purposes, as illustrated in the image below: ER-50 (Fichtner Decl.) ¶ 16. The "expandable metal baton is perhaps the most popular version of the baton for law enforcement today," and ASP "is one of the oldest and most well-known manufacturers of expandable batons in American law enforcement." Id.; SER-12 (noting that "some cops will use the name 'ASP' to refer to any expandable baton"). The ASP expandable baton is marketed specifically for law-enforcement use: "For more than forty years, ASP has 14 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 25 of 73 had a single-minded focus on providing law enforcement officers with the finest tools for the safe performance of their duties, and industry-leading training in the use of those tools." 6 2. California's 104-Year-Old Restrictions on Billies In 1917, the California Legislature enacted the Dangerous Weapons Control Act to "limit as far as possible the use of instruments commonly associated with criminal activity." People v. Bell, 49 Cal. 3d 502, 544 (1989) (citing Stats. 1917, ch. 145, § 1). Among other things, the Dangerous Weapons Control Act prohibited the manufacture, sale, giving, or possession of"any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, bludgeon, metal knuckles, [or] a dirk or a dagger." ER-38 (emphasis added); see also People v. King, 38 Cal. 4th 617, 624 (2006) (citing Stats. 1917, ch. 145, § 1). The California Supreme Court has explained that these restrictions sought "to condemn weapons common to the criminal's arsenal," "to outlaw instruments which are ordinarily used for crimin al and unlawful purposes," and to "check[] the possession of objects subject to dangerous use." Grubb, 63 Cal. 2d at 620 (citation omitted). The statute was a "partial inventory of 6 ASP, Inc., About Us, available at https://bit.ly/3qHxdnG (last visited Jan. 24, 2022). 15 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 26 of 73 the arsenal of the 'public enemy,' the 'gangster,' and a prohibition agai nst owning anything 'of the kind."' Mulherin, 140 Cal. App. at 215 (internal citation omitted). With the exception of metal knuckles, the weapons listed in the original 191 7 law "belong to a certain species of weapon having so many characteristics in common that their slight differences are unimportant" and they all are "short, easily concealed upon the person and so weighted as to constitute effective and silent weapons of attack." Id. The statute defined "the prohibited instruments or weapons not in specific terms, but as being of a kind commonly known as a black-jack or billie," a "purposely broad" definition that was likely adopted to address the "difficulties of nomenclature" in distinguishing the different types of instruments and weapons. People v. Canales, 12 Cal. App. 2d 215, 217 (1936). Continuously in effect since 1917, California's restrictions on billies were reenacted in 1923, Stats. 1923, ch. 339, § 1, and recodified as former California Penal Code section 12020 in 1953. See King, 38 Cal. 4th at 624. In 2010, the provisions were recodified without substantive change as California Penal Code section 22210. People v. Baugh, 20 Cal. App. 5th 438, 443 n.2 (2018) (citing People v. Brown, 227 Cal. App. 4th 451, 454 n.1 (2014)). 16 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 27 of 73 3. Law-Enforcement Exceptions to California's Billy Restrictions Section 22210's prohibition on billy possession is subject to certain exceptions, authorizing certain individuals to possess billies, batons, and similar weapons following training and in the course of their official duties. California peace officers may be authorized to carry a wooden club or baton that would otherwise be prohibited under section 22210. Cal. Penal Code § 22295(a). Before they are authorized to carry a police baton, California peace officers are trained in the safe and effective use of batons, based on minimum standards set by the California Commission of Peace Officer Standards and Training ("POST"). ER-51 52 (Fichtner Decl.) ¶¶ 22 24. In addition to the POST Commission's minimum standards applicable to all California peace officers, California Department of Justice agents receive extensive training on proper baton use and technique. See SER-59 66 (ASP Detailed Instructional Outline). In addition to sworn officers, uniformed security guards may be authorized to carry a wooden club or baton subject to certain conditions, including completion of a course of instruction certified by the California Department of Consumer Affairs in the carrying and use of the club or 17 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 28 of 73 baton. Id. § 22295(b).7 The Department of Consumer Affairs coordinates with the POST Commission to "develop standards for a course in the carrying and use of a club or baton." Id. § 22295(c). Consistent with its statutory obligations, the Department of Consumer Affairs issues a Baton Training Manual covering a range of topics, including "[m ]oral and legal aspects of baton usage," "[b]aton familiarization and uses," "[f]irst aid for baton injuries," "[d]efensive techniques," and "[a]rrest and control techniques." Cal. Bus. & Prof. Code § 7585.9(a); see e.g., SER-67 86 (Baton Training Manual). Section 22210 does not apply to the manufacture for, sale to, or lending of wooden clubs or batons to special police officers or uniformed security guards authorized to carry a wooden club or baton under section 22295. Cal. Penal Code § 22215. B. Procedural History In September 2019, Plaintiffs filed their complaint, challenging the constitutionality of California Penal Code section 22210 's restrictions on 7 In addition to peace officers and unformed security guards, animal control officers, humane officers, and illegal dumping enforcement officers may be authorized to carry a wooden club or baton in the scope of their official duties if they have completed the POST-certified baton training course. Cal. Penal Code § 22295(g). 18 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 29 of 73 billies under the Second Amendment on their face and as-applied to them. Dkt. 1; ER-71 90 (Compl.). Plaintiffs wish to acquire and possess " the same type of baton/billy [that] policemen are usually issued and an expandable baton for self-defense," and they asse rted a cause of action under the Second and Fourteenth Amendments and a cause of action for declaratory judgment. ER-80 81, 82 83 (Compl.) ¶¶ 47, 59, 76 85. Plaintiffs pray for an injunction of section 22210 "and any other relevant California law which bans the acquisition, possession, carrying or use of billies as applied to Plaintiffs and additionally against other similarly situated law abiding persons." ER-83 (Prayer for Relief). The parties filed cross-motions for summary judgment. Dkt. 21, 22. Following briefing, in September 2021, the district court granted the Attorney General's motion and denied Plaintiffs' motion , holding that California Penal Code section 22210 does not violate the Second Amendment. Dkt. 41; ER-8 36 (Order).8 The district court applied this 8 Contrary to Plaintiffs' claim, the district court did not mistakenly "suggest[] that Plaintiffs wish to own an older style billy weapon which is no longer in fashion." Opening Br. at 3. The district court's order fully appreciated that Plaintiffs wish to acquire a modern police baton. See ER-25 ("[W]hile police no longer carry a billy on their equipment belt, preferring instead a collapsible metal baton ...."); ER-24 (describing law enforcement transition, in the late 1900s and early 2000s, to the fixed-length PR-24 and 19 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 30 of 73 Circuit's two-step framework for adjudicating Second Amendment claims and held that section 22210 is the type of longstanding regulation that must be "upheld without further inquiry" at step one of the framework. ER-16 34 (citing Young, 992 F.3d at 783). The district court observed that section 22210 was enacted more than 100 years ago in 1917 and that numerous other states enacted similar restrictions on billies at that time or earlier. See ER-31 33. Because section 22210 is consistent with a tradition of longstanding regulation, the district court concluded that "[u]nder Ninth Circuit precedent, that ends the matter" : "once an arms regulation qualifies as longstanding, it is upheld without further inquiry. " ER-13, 34 (citing Young, 992 F.3d at 783). Because section 22210 is constitutional at step one, the district court did not apply any level of heightened scrutiny to the statute at step two. ER-16 17. The district court entered judgment on September 22, 2021. Dkt. 42; ER-37. SUMMARY OF THE ARGUMENT Under the Ninth Circuit's two -step framework for adjudicating Second Amendment claims, section 22210 does not burden conduct protected by the later collapsible metal batons), with ER-23 n.19 (citing Plaintiffs' declarations that they "desire to purchase the same type of baton/billy that policemen are usually issued"). 20 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 31 of 73 Second Amendment at the first step. California's restrictions on billies were enacted in 1917, and they were similar to restrictions on possession adopted by New York and Nevada around that time. These restrictions also followed other state restrictions on civilian uses of billies, restrictions that can be traced back to 1866 around the same time as the emergence of city and county police departments in the U.S. and the adoption of the billy as a law- enforcement tool. See ER- 13 (Order) ("[T]he prohibition on a billy has been in place in California for a century. And the California ban is not an anomaly. Similar bans on billies were enacted in other states a century ago and continue in existence today."). This pattern of state regulation is also consistent with a tradition dating back to, and even before, the Founding of governments regulating specific types of weapons deemed to be particularly susceptible to criminal use, such as Bowie knives or trap guns. This record "demonstrate[s] a history of longstanding regulation" of billies, even if the regulations of billies are "not from the founding era." Fyock, 779 F.3d at 997. Because section 22210 qualifies as a longstanding regulation that does not burden protected conduct, it should be "upheld without further analysis." Young, 992 F.3d at 783 (quoting Silvester, 843 F.3d at 821). Relatedly, unlike the handguns considered in Heller, there is no evidence to suggest that billies are in common use for lawful purposes like 21 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 32 of 73 self-defense. The record shows that, historically, billies were used widely by law enforcement and were coopted by criminals, but there is no evidence that they ever came into common use by the general, law-abiding public as a weapon for lawful self-defense. To the contrary, billies are not "typically possessed by law-abiding citizens for lawful purposes." Heller, 554 U.S. at 624 25. As the California courts have repeatedly stated, section 22210 regulates weapons that became "common to the criminal's arsenal" and , in private hands, were "ordinarily used for criminal and unlawful purposes." Davis, 214 Cal. App. 4th at 1331 (noting that the argument that billies are not protected by the Second Amendment is supported by California case law explaining the reasons for the restrictions). The traditional billy's modem variants, like the expandable metal batons that Plaintiffs wish to possess, may be widely used by law enforcement for specialized purposes, but that does show that such weapons are "typically possessed by law-abiding citizens for lawful purposes." Heller, 554 U.S. at 624 25. They are specialized law-enforcement tools that California law deems to be a billy subject to California Penal Code section 22210. If the Court were to proceed to step two, intermediate scrutiny would apply, which California Penal Code section 22210 satisifes. Intermediate scrutiny would apply at step two because the burden on the core Second 22 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 33 of 73 Amendment right by restricting civilian possession of billies, including police batons, is not severe. As noted, there is no evidence that law-abiding civilians commonly possess police batons for self-defense, and as they have since 1917, Californians can continue to rely on a range of alternative weapons, from firearms to less-lethal instruments, for effective self-defense, without adding billies to the mix. See Davis, 214 Cal. App. 4th at 1332 ("We note, as well, the restriction contained in Section [2221 O] does not deprive persons of their ability to defend themselves or their homes, because there are alternative means to do so." (citation omitted)). Under intermediate scrutiny, continuing to restrict police baton possession to trained law enforcement and security personnel is reasonably fitted to the State's important public-safety interests. The challenged law seeks to ensure that police batons remain effective tools for law enforcement, reducing the likelihood of unnecessary escalations of force that may occur if civilians are able to possess the same tools, for example, in crowd-control situations. The law also aims to reduce the criminal or negligent use of these dangerous weapons, especially in untrained hands. Under both steps of the Court's Second Amendment inquiry, California Penal Code section 22210 is constitutional. The Court should affirm. 23 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 34 of 73 STANDARD OF REVIEW The Court reviews de novo the district court's grant of summary judgment. Duncan v. Bonta, 19 F.4th 1087, 1096 (9th Cir. 2021) (en banc). ARGUMENT The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. While Heller recognized an individual right to keep and bear arms, it explained that ''the right secured by the Second Amendment is not unlimited" and does not extend to "a right to kee p and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. at 626 (citations omitted). Consistent with ten other federal circuit courts, this Court has adopted a two- step framework for assessing the constitutionality of laws challenged under the Second Amendment. The Court first asks whether " the challenged law affects conduct that is protected by the Second Amendment " Duncan v. ' Bonta, 19 F.4th 1087, 1100 (9th Cir. 2021) (en banc) (quoting Young, 992 F.3d at 783), and if it does not, "the law is constitutional, and [the] analysis ends" id. If, on the other hand, the challenged law burdens protected ' conduct, the Court "next choose[s] and appl[ies] an appropriate level of scrutiny." Id. 24 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 35 of 73 Although Plaintiffs purport to bring both a facial and an as-applied challenge, ER-77 (Compl. ¶ 25),9 their claims are properly characterized as only facial in scope. "A facial challenge is a claim that the legislature has violated the Constitution," as Plaintiffs' claim here, " while an as-applied challenge is a claim directed at the execution of the law." Young, 992 F.3d at 779 (citations omitted). In a facial challenge , the Court's inquiry is , including any relevant legislative "limited to the text of the statute itself" and historical evidence pertinent to the statute's constitutionality, while an as-applied challenge focuses on the plaintiffs' individual circumstances. See Young, 992 F.3d at 779. Here, Plaintiffs ' claims do not turn on the manner in which section 22210 's restrictions on billies have been applied to them; instead, Plaintiffs seek a broad injunction of those restrictions that would . Feldman v. Ariz. Secy of "reach beyond the[ir] particular circumstances" State 's Office, 843 F.3d 366, 385 n.20 (9th Cir. 2016) (quoting John Doe 9 Plaintiffs' challenge here is limited to the portion of C alifornia Penal Code section 22210 that restricts billies and does not seek to enjoin the statute's restrictions on blackjacks, sandbags, sandclubs, saps, or slungshots. Plaintiffs make no allegations and offer no argument or evidence showing how the restrictions on these other weapons would conceivably violate the Second Amendment. Indeed, of the other weapons listed in section 22210, Plaintiffs reference only the blackjack in a footnote, and do not mention any of the other weapons. See Opening Br. at 22 n.6 (noting that the District of Columbia bans blackjacks). This case concerns only the "billy" identified in the statute. 25 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 36 of 73 No. 1 v. Reed, 561 U.S. 186, 194 (2010)). Because they assert a facial challenge, Plaintiffs must demonstrate that "no set of circumstances exists under which the [restrictions] would be valid." Duncan, 19 F.4th at 1101 (citing Young. 992 F.3d at 779). Plaintiffs cannot make that showing. Whether Plaintiffs' claims are construed as facial or as-applied, the same two-step framework governs their claims. See Mai v. United States, 974 F.3d 1082, 1114 (9th Cir. 2020) (applying two-step framework to as- applied Second Amendment claim), cert. denied, 141 S. Ct. 2566 (Apr. 26, 2021) (No. 20-819). California Penal Code section 22210 's prohibition on billies, which covers the modern collapsible police baton, is constitutional at both steps of that framework. I. CALIFORNIA ' S RESTRICTIONS ON BILLIES DO NOT BURDEN CONDUCT PROTECTED BY THE SECOND AMENDMENT The first step considers whether the challenged law burdens conduct protected by the Second Amendment, based on a "historical understanding of the scope of the right." Young, 992 F.3d at 783 (quoting Silvester, 843 F.3d at 821). "[H]istory, text, and tradition greatly inform step one of the analysis " Duncan, 19 F.4th at 1100. A law does not burden conduct protected by the Second amendment if it either (i) is a presumptively lawful measure because it is a longstanding, accepted regulation or (ii) regulates 26 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 37 of 73 conduct that falls outside the scope of the Second Amendment. Young, 992 F.3d at 784. A. California's Restrictions on Billies Are Longstanding Regulations that Do Not Burden Protected Conduct A law does not burden the Second Amendment right at step one "if longstanding, accepted regulations have governed the subject of the challenged law." Duncan, 19 F.4th at 1102 (citing Young, 992 F.3d at 783); accord Fyock, 779 F.3d at 997. Heller identified certain categories of "presumptively lawful regulatory measures" falling outside the scope of the Second Amendment. Heller, 554 U.S. at 626, 627 n.26. Specifically, the Court identified prohibitions on the possession of firearms by felons and the mentally ill, prohibitions on the possession of arms in in sensitive places, and regulations governing the commercial sale of firearms. Id. This list is not exhaustive, id., and a longstanding law may be upheld even if it is not one of the '"presumptively lawful regulatory measures' that Heller identified," Young, 992 F.3d at 783. To qualify as longstanding for these purposes, a challenged law need not trace an analog to the Founding era, and regulations dating from the early twentieth century can suffice. Indeed, felon-possession bans one of the longstanding regulations identified by Heller as presumptively lawful 27 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 38 of 73 were not enacted until 1938, well into the twentieth century. See United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc); see also United States v. Phillips, 827 F.3d 1171, 1174 & n.2 (9th Cir. 2016) (discussing disagreement over whether felon-possession bans date back to 1938 or stem from the common law practice of forfeiture). Of course, evidence of longstanding regulation dating from the Founding may be more "reliable as evidence of the original meaning of the American right to keep and bear arms." Young , 992 F .3d at 811 (declining to "review twentieth- century developments in detail" where evidence from and before the Founding demonstrated that the challenged law was longstanding at step one). But historical evidence removed from the Founding, including "longstanding, accepted" regulations enacted in the early twentieth century, can demonstrate that a regulation does not burden the Second Amendment as originally understood, if"their 'historical prevalence and significance is properly developed in the record."' Pena v. Lindley, 898 F.3d 969, 1004-05 (9th Cir. 2018) (Bybee, J., concurring) (quoting Fyock, 779 F.3d at 997);10 10 Plaintiffs discount Fyock 's observation that early twentieth century laws can evidence longstanding, accepted regulation as dicta, because the statement "was not necessary" to the Court's holding. Opening Br. at 13 n.5. Under Plaintiffs' own logic, however, Young' s comment about twentieth century laws would also be dicta. 28 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 39 of 73 accord Silvester, 843 F.3d at 831 (Thomas, J., concurring) (explaining that "[t]he term 'longstanding' is not restricted to the time ofthe founding of the Republic" ).11 What qualifies as historically prevalent will vary depending on the type of regulation. See Duncan, 19 F.4th at 1121 ("The volume of available historical evidence" in Second Amendment cases "will vary enormously and may often be either vast or quite sparse." (Berzon, J., concurring)). And that is especially the case with newer weapons technologies that post-date the Founding, but which nevertheless exhibit a pattern of longstanding, accepted regulation. Indeed, in its most recent en banc Second Amendment case, this Court characterized as having "significant merit" the argument that longstanding regulations governed firearm magazine capacity, based on 11 See also Nat'/ Rifle Ass 'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives (NRA), 700 F.3d 185, 196 (5th Cir. 2012) ("Heller demonstrates that a regulation can be deemed 'longstanding' even if it cannot boast a precise founding-era analogue."); Skoien, 614 F.3d at 641 ("[E]xclusions need not mirror limits that were on the books in 1791."); Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1253 (D.C. Cir. 2011) (explaining that" Heller tells us 'longstanding' regulations are 'presumptively lawful" because t he existence of the longstanding regulation "necessarily means it has long been accepted by the public" and holding that handgun registration requirements are "longstanding in American law, accepted for a century in diverse states and cities and now applicable to more than one fourth of the Nation by population") . 29 Case: 21-56039, 01/24/2022, ID: 12349663, DktEntry: 15, Page 40 of 73 restrictions imposed in the 1920s and 1930s on the firing capacity of semiautomatic firearms, including one jurisdiction that continuously restricted firing capacity since 1932. Duncan, 19 F.4th at 1102.12 Here, the historical record shows that billies have been the subject of longstanding, accepted regulation, beginning soon after the institution of local police departments and their adoption of billies as law-enforcement tools, and in response to the billy coming into criminal use. See ER-21. As explained by the district court, California's billy restrictions are not "an anomaly" in American history. ER-20. California's restrictions date back over 100 years, and New York and Nevada enacted laws around that time similarly prohibiting the possession of billies.13 Eight years before California enacted its billy restrictions, New York enacted a prohibition on the possession of billies, providing that "[a] person who attempts to use 12 The Court ultimately decided to uphold the law at step two, rather than step one. Duncan, 19 F.4th at 1102 03. The Court assumed, without deciding, that California's large -capacity magazine restrictions burdened protected conduct because assessing whether twentieth-century firing- capacity restrictions would "have governed large -capacity magazines likely would [have] require[d] an extensive historical inquiry," id. at 1103, and because the constitutionality of the law at step two obviated any need to resolve step one definitively, see id. 13 It appears that Colorado added its billy restrictions in 1971. See 1971 Colo. Sess. Laws, ch. 121 at 481 (defining prohibited "blackjacks" to include "any billy"). 30
Enter the password to open this PDF file:
-
-
-
-
-
-
-
-
-
-
-
-