Clubs and the Second Amendment

At the California Appellate Report, Shaun Martin posts about People v. Liscotti, a recent decision by the Appellate Division of the California Superior Court.  This case affirms David Liscotti's conviction for possession of a club (or, in the court's adaptation of the statutory language -- a "billy") in violation of California Penal Code section 22210.

David Liscotti's club consisted of a baseball bat wrapped in nylon, with a hole bored into the center containing a metal bolt.  Liscotti claimed that he kept the club for private self-defense, although he admitted that he had used the club before in a "private one-on-one."

Liscotti challenged his conviction, arguing that section 22210's prohibition on clubs violated the Second Amendment.

In District of Columbia v. Heller, the Supreme Court held that prohibitions on handgun possession within one's home for purposes of self-defense is protected by the Second Amendment.  The Supreme Court noted that its decision did not apply to "dangerous and unusual" weapons, such as machine guns.  If weapons are not in common use, it is far less likely that possessing these weapons falls within one's Second Amendment rights.

The California court held that Liscotti's club fell into the category of dangerous and unusual weapons.  When confronted with Liscotti's argument that these weapons have been widely used since the beginning of time, the court engaged in some historical analysis:

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. (As an aside, 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….).

Martin criticizes the California court for engaging in shoddy analysis here, noting that proof of something is not required if it is obvious enough, arguing that clubs likely have been around since primitive times, and pointing out that cavemen likely fought each other with these clubs, reserving weapons such as spears and arrows for encounters with animals.  Martin finally points out that clubs are commonly available for self-defense purposes, since people may often resort to baseball bats to fight an intruder should the need arise.

While Martin's criticism is factually correct, it would appear that legally, the California court's analysis is on point.  After all, the court seems to be following a more hidden Heller precedent of misapplying historical evidence.  After all, the Supreme Court in Heller noted that machine guns are not in wide use, and therefore their use is not protected by the Second Amendment.  Adam Winkler notes, however, that machine guns are not in common use precisely because they have been stringently restricted for over 75 years by the federal government -- hardly a good originalist argument for exempting their regulation from Second Amendment scrutiny.

My guess is that the California court did not believe Liscotti's claim he kept the club for self-defense.  His reference to using the club in a private fight may have been a clue here.  The court probably could have reached this conclusion without engaging in its own Heller-type historical analysis.