Might we have a candidate for worst-reasoned judicial opinion of the year?
A man is caught with a homemade billy club. He took a bat, bored out the middle, filled the hole with a metal bolt, and wrapped the stick in rope. It's now a weighted club, possession of which is punishable by up to one year in jail.
That same clever craftsman and his lawyer came up with an even more clever defense: the Second Amendment. As a refresher, "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."
Ah, arms. Until recently, we weren't even sure if that included firearms. But by definition, one would imagine that "arms" would extend to nearly anything that one would use for lawful purposes, such as self-defense, especially since that was the rationale behind District of Columbia v. Heller.
That's the argument here, that "clubs" have been used since the days of cavemen for self-defense. The court refuses to take judicial notice of such a fact without support on the record, which is pretty asinine considering we've all seen the Flintstones and since there was a time where guns didn't exist and people had to beat each other with sticks.
Instead of taking judicial notice of a common notion, the court compares billy clubs to other weapons that have fallen outside of the Second Amendment's protections, including pipe bombs, concealed weapons, and unmarked firearms. The court also states that historically, cavemen used "billys" for hunting and defense against animals, not self-defense, and if they did use it for self defense, it was excessive and naughty.
My head hurts. The court can't take judicial notice that humans have used baseball bats and billy clubs for self-defense for centuries, yet the court pulls this hunting and defense-against-animals stuff out of their robes, and then presumes, without reason, that if they used clubs in self-defense against other cavemen, that it would excessive force. Riiiiiight.
They also called the club a weapon of "cowardly assassins." I can't top Professor Shaun Martin's take on that comment:
"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."
It's a terribly reasoned opinion. Every right has its limits. You can't yell "fire" in a crowded theater or incite a riot via speech. You can't practice religion freely if that religion requires you to sacrifice virgins.
It may be that billy clubs are so dangerous that restricting them is a permissible limit on the Second Amendment. The court doesn't take that route here. They simply veer off into nonsense involving cavemen and assassins to hold that a billy club doesn't fit under the amendment at all.
- People v. Liscotti (Cal Super. Ct. App. Div.)
- Police Can Still Seize and Destroy Guns from Mentally Ill (FindLaw's Cal Case Law Blog)
- Montana Firearms Freedom Act Predictably Falls in 9th Circuit (FindLaw's Ninth Circuit Blog)