Fouts Amicus Brief of Mature American Citizens

Case: 24-1039, 06/13/2024, DktEntry: 20.
1, Page 1 of 42
No. 24-1039
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
______________________
RUSSELL FOUTS, et al.,
Plaintiffs-Appellees,
v.
ROB BONTA, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,
Defendant-Appellant.
______________________
On Appeal from the United States District Court

for the Southern District of California
No. 3:19-cv-01662-BEN-JLB
(Hon. Roger T. Benitez)
______________________
BRIEF OF THE ASSOCIATION OF MATURE AMERICAN CITIZENS AS

AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES AND
AFFIRMANCE
______________________
John Parker Sweeney

James W. Porter, III
W. Chadwick Lamar Jr.
Bradley Arant Boult Cummings LLP
1615 L Street N.W., Suite 1350
Washington, D.C. 20036
Phone: 202-719-8216
Facsimile: 202-719-8316
jsweeney@bradley.com
Counsel for Amicus Curiae

Case: 24-1039, 06/13/2024, DktEntry: 20.1, Page 2 of 42
CORPORATE DISCLOSURE STATEMENT
Pursuant to FRAP 26.1, the Association for Mature American Citizens states
that it is a nongovernmental corporation that has no parent corporation and that no
publicly held corporation owns 10% or more of its stock.
Dated: June 13, 2024 /s/ John Parker Sweeney

John Parker Sweeney
ii
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................................................................iv
STATEMENT OF CONSENT .............................................................................. viii
INTEREST OF AMICUS CURIAE...........................................................................ix
INTRODUCTION ..................................................................................................... 1
BACKGROUND ....................................................................................................... 3
SUMMARY OF THE ARGUMENT ........................................................................ 7
ARGUMENT ........................................................................................................... 11
I. California’s Billy Ban burdens conduct that is presumptively
protected by the Second Amendment’s plain text ............................ 11
II. California failed to prove that the banned arms are not in
common use for lawful purposes or uniquely dangerous, and it
must prove both to justify the Billy Ban ........................................... 13
A. The State bears the burden to prove that the arms at issue
are dangerous and unusual ......................................................... 14
B. The State has not met its burden to prove that the arms at
issue are uniquely dangerous and are not in common use ......... 17
III. California failed to prove that its Billy Ban is consistent with this
Nation’s historical tradition of arms regulation ................................ 21
A. The ban fails under the “straightforward” analysis .................... 21
B. The ban fails under analogical reasoning ................................... 24
IV. California’s broadly and vaguely worded ban raises serious due
process concerns and violates Bruen’s admonition against
governmental discretion .................................................................... 29
CONCLUSION ........................................................................................................ 30
iii
TABLE OF AUTHORITIES
Cases
Atkinson v. Garland,
70 F.4th 1018 (7th Cir. 2023) ............................................................................. 13
Brown v. Davenport,
596 U.S. 118 (2022) ............................................................................................ 16
Caetano v. Massachusetts,
577 U.S. 411 (2016) ..................................................... 8, 9, 12, 13, 14, 17, 20, 21
Connecticut v. DeCiccio,
105 A.3d 165 (Conn. 2014) ..........................................................................12, 18
District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................... 2, 7, 8, 11, 12, 14, 15, 16, 17, 21
Espinoza v. Mont. Dep’t of Revenue,
591 U.S. 464 (2020) ......................................................................................25, 26
Friedman v. City of Highland Park,
136 S. Ct. 447 (2015) .......................................................................................... 18
Fyock v. Sunnyvale,
779 F.3d 991 (9th Cir. 2015) ..................................................................13, 17, 18
Johnson v. United States,
576 U.S. 591 (2015) ............................................................................................ 29
Konigsberg v. State Bar of Cal.,
336 U.S. 36 (1961) ................................................................................................ 2
Lara v. Comm’r Penn. State Police,
91 F.4th 122 (3d Cir. 2024) ................................................................................ 25
Maloney v. Singas,
351 F. Supp. 3d 222 (E.D.N.Y. 2018) ................................................................ 12
Maryland Shall Issue, Inc. v. Hogan,

86 F.4th 1038 (4th Cir. 2023) .......................................................................26, 27
iv
McDonald v. City of Chicago,

561 U.S. 742 (2008) ............................................................................................ 25
New York State Rifle & Pistol Ass’n, Inc. v. Bruen,
597 U.S. 1 (2022) .........................................................................................passim
Oregon v. Kessler,
614 P.2d 94 (Or. 1980) .................................................................................12, 18
People v. Auten,
2011 WL 1648254 (Cal. App. May 3, 2011)........................................................ 5
People v. Baugh,
20 Cal.App.5th 438 (2018) ...........................................................1, 3, 4, 5, 18, 29
People v. Canales,
12 Cal.App.2d 215 (1936) ................................................................................ 1, 3
People v. Davis,
214 Cal.App.4th 1322 (2013) ........................................................................... 5, 6
People v. Deane,
259 Cal.App.2d 82 (1968) .................................................................................... 4
People v. Fannin,
91 Cal.App.4th 1399 (2001) ................................................................................. 4
People v. Grubb,
63 Cal.2d 614 (1965) ........................................................................................ 3, 5
People v. Huynh,
229 Cal.Rptr.3d 385 (2018) .................................................................................. 5
People v. King,
38 Cal.4th 617 (2006) ........................................................................................... 5
People v. Leffler,
2018 WL 3974150 (Cal. App. Aug. 20, 2018) ..................................................... 3
People v. Twiford,
2018 WL 144560 (Cal. App. Mar. 23, 2018) ....................................................... 5
v
People v. Vargas,
2001 WL 1215858 (Cal. App. Oct. 11, 2001) ...................................................... 5
People v. Villanueava,
2017 WL 999220 (Cal. App. Mar. 15, 2017) ....................................................... 5
Ramos v. Louisiana,
590 U.S. 83 (2020) .............................................................................................. 25
Teter v. Lopez,
76 F.4th 938 (9th Cir. 2023) .......................................................14, 15, 25, 26, 28
United States v. Alaniz,

69 F.4th 1124 (9th Cir. 2023) ............................................................................. 16
United States v. Duarte,

101 F.4th 657 (9th Cir. 2024) .................................................................13, 15, 16
United States v. Perez-Garcia,
96 F.4th 1166 (9th Cir. 2024) ............................................................................. 16
Statutes
1837 Ga. Acts. 90, §§ 1, 4........................................................................................ 28
1849 N.Y. Laws 403–404, ch. 278, §§ 1–2 ............................................................. 28
1849 Vt. Acts & Resolves 26, No. 36, §§ 1–2......................................................... 28

1866 N.Y. Rev. Stat. ch. 716, §§ 1–2, reprinted in Throop, Revised
Statutes of the State of New York, Vol. 3, at 2512 (1882). ................................ 27
1868 Fla. Stat., ch. 1637, reprinted in Blount, et al., Rev. Stats. of Fla.
782–83, tit. 2, art. 5, § 2423 (1892). ................................................................... 27
1881 Ill. Laws 73, § 1 .............................................................................................. 28
1917 Cal. Stat. 221, ch. 145, § 1 ................................................................................ 3

Cal. Penal Code § 22210 ...................................................................................passim
vi
Other Authorities
Ben Miller, A History of Cane Self-Defense in America: 1798-1930,

Martial Arts New York (Aug. 16, 2016) ............................................................ 22
Boston Massacre, History (last updated Aug. 11, 2023) ......................................... 23
California’s Population Aged 65 Years and Older, Cal. Health

Benefits Rev. Program (Nov. 2022) ....................................................................ix
Crimes Against Older Adults Fact Sheet, U.S. Dep’t of Justice, Office
for Victims of Crime (2018) ................................................................................ix
Crime in California 2022, Cal. Dep’t of Just. ...........................................................ix
Eric Ruben, Law of the Gun: Unrepresentative Cases and Distorted

Doctrine, 107 Iowa L. Rev. 173 (2021)....................................................8, 12, 18
From Cane to Weapon: Senior Citizens Fight Back with Cane Fu,
ABC News (Sept. 5, 2012) ................................................................................. 19
Junior Ranger Program Handbook, Cal. State Parks (revised 2011)....................... 19

Nancy M. Gell, et al., Mobility Device Use Among Older Adults and
Incidence of Falls and Worry About Falling: Findings from the
2011–2012 National Health and Aging Trends Study, 63 J. Am.
Geriatrics Soc. 853 (2015) ..........................................................................1, 9, 18
Raja Razek, et al., First fatal mountain lion attack in California in 20
years leaves one man dead, brother injured, authorities say, CNN
(updated Mar. 24, 2024) ....................................................................................... 6
Ronan O’Connell, Bataireach: The ancient Irish martial art making a

comeback, BBC (Oct. 17, 2022) ......................................................................... 22
Ryan Yamamoto, Oakley seniors train with canes for self-defense,

CBS News (Nov. 29, 2023) ............................................................................ 6, 19
The Caning of Charles Sumner, United States Senate ............................................ 23
vii
STATEMENT OF CONSENT
All parties have consented to the filing of this amicus brief pursuant to FRAP
29(a)(2). No party or party’s counsel authored this brief in whole or in part. Nor has
anyone other than amicus curiae, its members, or its counsel contributed money
towards this brief.
viii
INTEREST OF AMICUS CURIAE
The Association of Mature American Citizens (“the Association”) is a
membership organization focused on the needs of America’s older citizens 50 years
of age and older and bringing the concerns of its two million members in a unified
voice to the attention of government officials. The Association has over 140,000
members in the State of California. Roughly 15% of California’s population is 65 or
older, and that percentage is expected to grow.1 The Association is committed to
enriching the lives of all Americans and safeguarding Americans’ constitutional
rights, including the fundamental right to keep and bear arms, which is “necessary
to the security of a free State.” U.S. Const. amend II. The Association firmly
believes, as America’s Founders did, that the power of government to act is justly
limited by the fundamental rights of the people, including the right to keep and bear
arms for all lawful purposes such as self-defense.
Older Americans face “significant” threats of victimization.2 In California in
2022, violent crimes against seniors numbered 16,575.3 The Association’s members
1
California’s Population Aged 65 Years and Older, Cal. Health Benefits Rev.
Program (Nov. 2022) [link].
2
Crimes Against Older Adults Fact Sheet, U.S. Dep’t of Justice, Office for Victims
of Crime (2018) [link].
3
Crime in California 2022, Cal. Dep’t of Just. [link].
ix
seek to possess non-lethal arms, including ordinary objects commonly possessed for
lawful purposes like canes and walking sticks, and to use them in self-defense should
the need arise without fear of prosecution under the vaguely worded and limitlessly
broad California statute at issue. Whether California’s ban on the possession of “any
instrument or weapon of the kind commonly known as a billy” violates the Second
Amendment is of tremendous significance to the Association and its members. The
Association submits this brief in support of the district court’s judgment enjoining
enforcement of California’s “Billy Ban.”
x
INTRODUCTION
Every day, many ordinary older citizens choose to take a cane or walking stick
when leaving home. In California, these individuals risk becoming felons because
the State criminalizes the possession of “any instrument or weapon of the kind
commonly known as a billy.” Cal. Penal Code § 22210. Although the term “billy”
most naturally refers to a club or baton, such as those carried by police officers,
California’s categorical Billy Ban sweeps much further: it criminalizes the
possession of any “ordinary” and “innocent” blunt instrument that a citizen would
use for “self-defense” “if the need arose.” People v. Baugh, 20 Cal.App.5th 438,
443–46 (2018) (affirming conviction based on possession of a baseball bat for self-
defense). Just as it criminalizes the possession of a baseball bat for self-defense, id.,
California’s Billy Ban also appears to criminalize an older American’s possession
of a cane, walking stick, or any other ordinary blunt object that they would use to
defend themselves “if the need arose.” Id. at 446. The ban’s implications cannot be
understated: nearly six million Americans use a cane for mobility,4 which
California’s “purposely broad” statute criminalizes if the citizen has self-defense in
mind. People v. Canales, 12 Cal.App.2d 215, 217 (1936). Many older Americans
4
Nancy M. Gell, et al., Mobility Device Use Among Older Adults and Incidence of
Falls and Worry About Falling: Findings from the 2011–2012 National Health and
Aging Trends Study, 63 J. AM. GERIATRICS SOC. 853, 855 (2015).
1
cannot even leave their homes without the assistance of a cane and, under
California’s Billy Ban, cannot raise it to fend off an unleashed dog or attacker on the
street without risking criminal prosecution.
California’s vaguely worded and limitlessly broad Billy Ban is an “outlier[]
that our ancestors would never have accepted.” New York State Rifle & Pistol Ass’n,
Inc. v. Bruen, 597 U.S. 1, 30 (2022) (citation omitted). It violates “the Second
Amendment’s ‘unqualified command,’” id. at 17 (quoting Konigsberg v. State Bar
of Cal., 336 U.S. 36, 50 n.10 (1961)), and the preexisting “inherent” and “natural
right of resistance and self-preservation” which entitles citizens to armed self-
defense, District of Columbia v. Heller, 554 U.S. 570, 594, 628 (2008).
2
BACKGROUND
Since 1917, the State of California has prohibited the possession of “any
instrument or weapon of the kind commonly known as a billy.” Cal. Penal Code §
22210 (current codification); see 1917 Cal. Stat. 221, ch. 145, § 1 (original
language). Although “billy,” in isolation, refers to a club or baton, People v. Leffler,
2018 WL 3974150, at *2 (Cal. App. Aug. 20, 2018), California’s exceedingly and
“purposely broad” statute reaches much further than clubs and batons. Canales, 12
Cal.App.2d at 217. California has identified no other state in the Union with such a
statute on its law books, demonstrating that it truly is an outlier.
The limitless breadth of the ban stems from its inclusion of any instrument “of
the kind commonly known as a billy.” Cal. Penal Code § 22210 (emphasis added).
California’s Billy Ban criminalizes the possession of “an instrument with ordinary
innocent uses” so long as “the object was possessed as a weapon.” Baugh, 20
Cal.App.5th at 444. That includes possessing the instrument for “self-defense” in the
event that “the need arose.” Id. at 444, 446 (holding that a bat the defendant “would”
use “as a weapon . . . if the need arose” supported conviction); People v. Grubb, 63
Cal.2d 614, 617–18 (1965) (holding that possession for “self-defense” and previous
use as a weapon satisfied “the very elements that convert[ed] the broken bat
otherwise usable for peaceful purposes into the kind of instrument proscribed by the
3
statute”), superseded on other grounds by statute. These precedents make clear that
the possession of virtually any object that “may be used as an ‘impact weapon’” and
is possessed for “self-defense” is outlawed by California’s Billy Ban. Baugh, 20
Cal.App.5th at 444, 447. Criminal intent is satisfied if the possessor “felt the need
for a weapon and had a willingness to use it.” Id. at 446.
California’s courts have not addressed whether possession for concurrent
purposes is criminal—such as having a cane for both mobility and self-defense. But
caselaw suggests that even the partial purpose of self-defense is criminal, because a
defendant claiming “innocent” use must prove that he possessed the object “for the
purposes served by [the object’s] legitimate design instead of those proscribed by
[the ban].” People v. Fannin, 91 Cal.App.4th 1399, 1406 (2001) (affirming finding
that bicycle lock was a slungshot) (emphasis added). The possessor need only have
“contemplated the unlawful and not the lawful use” “at the time and place of the
alleged illegal possession.” Id. at 1404 (quoting People v. Deane, 259 Cal.App.2d
82, 89 (1968), superseded by statute). The Billy Ban criminalizes possession of
virtually any “ordinary” and “innocent” blunt instrument if possessed with even the
momentary contemplation of “self-defense.” Id.; Baugh, 20 Cal.App.5th at 443–46.
The California Supreme Court has repeatedly said that “a baseball bat or a
table leg, each of which unquestionably has lawful, utilitarian purposes, may
4
nevertheless constitute a ‘billy.’” People v. King, 38 Cal.4th 617, 626 (2006); Grubb,
63 Cal. 2d at 621 (contrasting “possession of a table leg . . . carried at night in a
‘tough’ neighborhood to the scene of a riot” with a “Little Leaguer at bat in a baseball
game”). The statute places citizens at the mercies of prosecutorial discretion and
arbitrary interpretation. Grubb held that the statute reached a small baseball bat with
its handle broken and taped. 63 Cal.2d at 620–21. Intermediate courts have affirmed
convictions based on ordinary objects like “a small wooden bat,” Baugh, 20
Cal.App.5th at 448–49, a “longer” bat modified with a wrist strap and holes, People
v. Davis, 214 Cal.App.4th 1322, 1328–29 (2013), “a 10- to 11-inch wooden table
leg or a stool leg with a string or lanyard tied around it for a handle,” People v. Auten,
2011 WL 1648254, at *2, *4 (Cal. App. May 3, 2011), a “mini sledgehammer,”
People v. Huynh, 229 Cal.Rptr.3d 385, 405 (2018) (ordered not published), a tire
iron, People v. Villanueva, 2017 WL 999220, at *2–3 & n.3 (Cal. App. Mar. 15,
2017), “a three-foot long metal pipe,” People v. Vargas, 2001 WL 1215858, at *3
(Cal. App. Oct. 11, 2001), and “a 14-inch piece of rebar” that was “modified to have
a handle,” People v. Twiford, 2018 WL 1444560, at *1 (Cal. App. Mar. 23, 2018).
The statute lacks any limiting principle. The object need not be “physically altered
from its original form to enhance its utility as a weapon.” Baugh, 20 Cal. App. 5th
at 446. Nor must it be “concealable.” Davis, 214 Cal. App. 4th at 1328.
5
The Billy Ban criminalizes the possession of canes, walking sticks, or other
ordinary-yet-blunt instruments that a law-abiding citizen might keep and use for
everyday purposes if she has self-defense in mind. That would include an older
American walking down the street with a cane,5 a hiker with a walking stick worried
about assault or even attack by a wild animal,6 someone who picks up a stick on the
ground to defend from attack, and virtually any other possession of a blunt
instrument for the partial purposes of self-defense. The logical extension of the Billy
Ban is that the State of California does not want citizens to own anything that could
be used as a weapon of self-defense. The only limitation on the reach of the ban is
prosecutorial discretion, but the Supreme Court has already held that the Second
Amendment is not satisfied by handing “open-ended discretion” to state law-
enforcement officials. Bruen, 597 U.S. at 79 (Kavanaugh, J., concurring).
5
Ryan Yamamoto, Oakley seniors train with canes for self-defense, CBS News
(Nov. 29, 2023) [link].
6
Raja Razek, et al., First fatal mountain lion attack in California in 20 years leaves
one man dead, brother injured, authorities say, CNN (updated Mar. 24, 2024) [link].
6
SUMMARY OF THE ARGUMENT
“[W]hen the Second Amendment’s plain text covers an individual’s conduct,
the Constitution presumptively protects that conduct”; thus, a law burdening
protected conduct is unconstitutional unless the government “demonstrate[s] that the
regulation is consistent with this Nation’s historical tradition of [arms] regulation.”
Bruen, 597 U.S. at 17. Bruen’s application here is straightforward: the plain text of
the Second Amendment covers law-abiding citizens’ possession of blunt instruments
prohibited by California’s Billy Ban, and the State has not met its burden to
“affirmatively prove” that an “enduring,” “well-established,” and “comparable
tradition of regulation,” id. at 19, 27, 30, 67, supports the State’s categorical and
limitless ban on the possession of “any instrument or weapon of the kind commonly
known as a billy.” Cal. Penal Code § 22210. The Court should affirm the judgment
of the district court striking down the Billy Ban.
California’s Billy Ban burdens conduct presumptively protected by the
Second Amendment because it prohibits all Americans from possessing—keeping
and bearing—protected “Arms” for self-defense. The Second Amendment’s text
presumptively covers “all instruments that constitute bearable arms,” Heller, 554
U.S. at 582, which includes any “instruments that facilitate armed self-defense,”
Bruen, 597 U.S. at 28. Sticks and other blunt impact weapons undoubtedly satisfy
7
that standard; they are the “simplest and oldest weapon[s].” Eric Ruben, Law of the
Gun: Unrepresentative Cases and Distorted Doctrine, 107 Iowa L. Rev. 173, 192
(2021). California’s Billy Ban is unconstitutional unless the State proves a justifying
historical tradition.
In an effort to avoid “shoulder[ing] the burden” of demonstrating historical
tradition, Bruen, 597 U.S. at 45 n.11, the State contends that the ban is constitutional
because the Plaintiffs failed to prove that the arms at issue are “in common use.”
State.Br.22–27. Not so. The Nation’s “historical tradition” conclusively protects
arms “in common use” for lawful purposes, just as “historical tradition” might
permit banning arms that are “dangerous and unusual.” Bruen, 597 U.S. at 47;
Caetano v. Massachusetts, 577 U.S. 411, 411–12 (2016); Heller, 554 U.S. at 627.
The history-based burden falls on the State to prove that the arm is “both dangerous
and unusual.” Caetano, 577 U.S. at 417 (Alito, J., concurring). The State has not
met either part of its conjunctive burden here. There is abundant support for the
conclusion that the instruments California bans—batons, clubs, canes, sticks, and
other everyday objects—are in common use for lawful purposes including self-
defense. Conversely, there is no support for the State’s position that such objects are
uniquely dangerous; to the contrary, these non-lethal arms are patently less
dangerous than many other protected arms including firearms. Canes and walking
8
sticks, often prescribed by physicians, ubiquitously serve citizens other ways like
reducing fall risks and increasing mobility.7 The State has not proven unique
dangerousness and lack of common use, and that failure renders California’s outright
ban unconstitutional. Id. at 420.
The State fails to “affirmatively prove” a sufficient “tradition of regulation”
that justifies categorically banning virtually all blunt instruments. Bruen, 597 U.S.
at 19, 27. The historical record yields a rich tradition of using blunt objects, like
canes, for defensive purposes, and it demonstrates that violence involving blunt
objects is as old as civilization itself. Yet the State identified no historical laws
banning the class of arms at issue, which is dispositive under Bruen’s
“straightforward historical inquiry.” Id. at 26–27. Even if analogical reasoning were
appropriate here, which it is not, the State has not identified any “relevantly similar”
tradition. Id. at 29. The State’s evidence demonstrates only insufficient “restrictions
governing the intent for which one could carry arms, the manner of carry, or the
exceptional circumstances under which one could not carry arms,” id. at 38, and a
few bans of weapons not remotely analogous to canes and sticks. None of the State’s
evidence sets forth a non-theoretical and comparable tradition of regulation. The
7
Gell, supra note 4, at 853.
9
State thus fails to meet its burden to prove the constitutionality of its law banning
virtually every blunt object merely because it is possessed with self-defense in mind.
There are countless reasons why law-abiding citizens would opt to use non-
lethal impact weapons to defend themselves; and, especially in California where
firearms are severely restricted, resorting to everyday instruments like canes and
walking sticks might be an older citizen’s only option. California violates the
Constitution by criminalizing possession of common objects like canes and sticks.
The district court’s judgment should be affirmed.
10
ARGUMENT
California’s Billy Ban is unconstitutional. The Second Amendment’s plain
text covers the possession of the blunt instruments prohibited by California’s ban,
and the State has failed to meet its burden to prove a justifying historical tradition.
The Court should affirm the district court’s judgment.
I. California’s Billy Ban burdens conduct that is presumptively protected

by the Second Amendment’s plain text.
The Second Amendment’s text provides a clear command: “the right of the
people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.
California’s banning the possession of “any instrument of the kind commonly known
as a billy” burdens protected conduct because it prohibits all citizens (the people)
from acquiring, possessing, and carrying (keeping and bearing) virtually any blunt
impact weapon, including ordinary objects such as canes and walking sticks, for the
purposes of self-defense (arms).
The Supreme Court has confirmed that all instruments covered by California’s
ban are presumptively protected “Arms.” Heller held, and Bruen reaffirmed, that
“the Second Amendment extends, prima facie, to all instruments that constitute
bearable arms.” Bruen, 597 U.S. at 28 (quoting Heller, 554 U.S. at 582). That
includes all “instruments that facilitate armed self-defense,” id. at 28, or instruments
possessed “for offensive or defensive action,” id. at 32, or “any thing that a man . . .
11
takes into his hands, or useth in wrath to cast at or strike another,” Heller, 554 U.S.
at 581. As the State’s experts concede, “sticks have always served as weapons,” 5-
ER-768, and “blunt weapons” have taken on “countless variations,” 5-ER-817. What
was true historically remains true today: “The simplest and oldest weapon,
meanwhile, is the impact weapon,” and “more Americans undoubtedly possess blunt
force instruments than guns.” Ruben, supra, 107 Iowa L. Rev. at 192, 209. In every
application, the instruments covered by California’s Billy Ban are presumptively
protected arms. Any limitation on that protection must come from “historical
justification[].” Heller, 554 U.S. at 635.
That the instruments at issue are non-lethal does not diminish their textually
protected nature. Several courts have held that non-lethal blunt instruments are
protected, including billy clubs. Maloney v. Singas, 351 F. Supp. 3d 222, 238
(E.D.N.Y. 2018) (nunchucks); Connecticut v. DeCiccio, 105 A.3d 165, 198 (Conn.
2014) (batons); Oregon v. Kessler, 614 P.2d 94, 100 (Or. 1980) (billy clubs under
state analogue). The Supreme Court’s decision in Caetano, which summarily
reversed a Massachusetts court’s holding “that the Second Amendment does not
extend to stun guns,” provides further confirmation. 577 U.S. at 411–12. If that were
not enough, in Caetano, the author of McDonald was joined by the author of Bruen
12
in concluding that stun guns are protected “weapons” and banning them “violate[d]
the Second Amendment.” Id. at 420 (Alito, J., joined by Thomas, J., concurring).
Because “the Second Amendment’s ‘plain text’ covers the regulated conduct,
the government has only one way to defend the regulation—by proving that it is
‘consistent with this Nation’s historical tradition of firearm regulation.’” Atkinson v.
Garland, 70 F.4th 1018, 1020 (7th Cir. 2023); United States v. Duarte, 101 F.4th
657, 668 (9th Cir. 2024) (similar).
II. California failed to prove that the banned arms are not in common use
for lawful purposes or uniquely dangerous, and it must prove both to
justify the Billy Ban.
To avoid facing its historical burden, the State contends that the “plaintiffs’
claim fails at the threshold stage” because the Plaintiffs did not prove “common use.”
State.Br.18, 22–27. It also contends that these instruments are “dangerous and
unusual,” id. at 27–31, and curiously accepts the burden even though common use
is part and parcel of the dangerous-and-unusual analysis. Fyock v. Sunnyvale, 779
F.3d 991, 997 (9th Cir. 2015), abrogated on other grounds by Bruen, 597 U.S. 1.
The State’s effort to flip the burden defies Supreme Court precedent and history.
And the State has failed to prove that these instruments are dangerous or unusual,
and it must prove both. Caetano, 577 U.S. at 417 (Alito, J., concurring). That failure
alone warrants striking down the ban—the Second Amendment conclusively
13
“protects the possession of use of weapons that are in common use at the time.”
Bruen, 597 U.S. at 21 (quoting Heller, 554 U.S. at 627) (quotation marks omitted).
A. The State bears the burden to prove that the arms at issue are
dangerous and unusual.
The State mistakenly believes that the Plaintiffs bear the burden to prove that
the arms are in common use. State.Br.18, 22–27. That is wrong. The State must
prove both “that the weapon has uniquely dangerous propensities” and that the
weapon is not “commonly possessed by law-abiding citizens for lawful purposes” at
Bruen’s second step. See, e.g., Teter v. Lopez, 76 F.4th 938, 950 (9th Cir. 2023)
(quoting Fyock, 779 F.3d at 997), reh’g en banc granted, op. vacated, 93 F.4th 1150
(9th Cir. 2024); Caetano, 577 U.S. at 417 (Alito, J., concurring) (“A weapon may
not be banned unless it is both dangerous and unusual.”). The State’s effort to flip
the burden runs headlong into Bruen, Caetano, and Heller.
All that is required to trigger the State’s historical-evidence burden is
satisfaction of the Second Amendment’s “plain text” elements: the people, keeping
or bearing, and arms. Bruen, 597 U.S. at 31–32. Those elements are satisfied. Supra
at 11–13. The State’s burden-flipping argument has nothing to do with the “plain
text” of the Second Amendment, Bruen, 597 U.S. at 32–33, which is all that Bruen
analyzed before placing the burden squarely on the government and “turn[ing] to
14
[the] historical evidence,” id. at 38. Anything beyond plain text, such as common
use, falls under the State’s burden. Teter, 76 F.4th at 950.8
The Supreme Court’s historical analysis confirms that the State bears this
burden. It repeatedly instructed that “historical tradition” conclusively protects arms
“in common use” unlike “dangerous and unusual” arms. Bruen, 597 U.S. at 21;
Caetano, 577 U.S. at 411–12; Heller, 554 U.S. at 627. The State ignores that any
limitation on the scope of Second Amendment rights to weapons in common use can
only be “[d]raw[n] from th[e] historical tradition” of prohibiting “dangerous and
unusual weapons.” Bruen, 597 U.S. at 47.
The State argues that common use is a step one inquiry because Heller
discussed banning certain “short-barreled shotguns” and “M-16 rifles” without
mentioning commonality. State.Br.22–24. But the State’s argument again assumes
that these weapons are not “Arms” under the plain text, which cannot be reconciled
with the instructions that the term textually includes “instruments that facilitate
armed self-defense,” Bruen, 597 U.S. at 28, and “any thing that a man . . . useth in
wrath to cast at or strike another,” Heller, 554 U.S. at 581. Heller was merely
offering presumptive dicta about the possibility that these weapons would be proven
8
Plaintiffs likely do not bear the textual inquiry burden, Duarte, 101 F.4th at 676
n.8, but that issue is irrelevant because the text indisputably covers the prohibited
conduct.
15
“dangerous and unusual.” Id. at 627. This Court foreclosed the State’s invitation to
ignore history in favor of dicta. Duarte, 101 F.4th at 668 (prohibiting “[s]imply
repeat[ing] Heller’s language about the presumptive[] lawful[ness] of felon firearm
bans” (quotation marks and citation omitted)). The State must rely on “historical
justifications,” Heller, 554 U.S. at 635, for which it bears the burden, Bruen, 597
U.S. at 17.
The State’s final plea is to dicta observing that the textual analysis includes
answering “whether the weapon at issue is in common use today for self-defense.”
State.Br.23 (quoting United States v. Alaniz, 69 F.4th 1124, 1128 (9th Cir. 2023)).
But Alaniz analyzed only step two; it “assume[d], without deciding, that step one of
the Bruen test [was] met.” 69 F.4th at 1129. The Alaniz Court’s “stray comment[]”
was immaterial and cannot “justify an outcome inconsistent with [Bruen’s]
reasoning and judgment[].” Brown v. Davenport, 596 U.S. 118, 141 (2022). This
Court got it right in later dicta: “presumptive protections of the Second Amendment
may be rebutted as to arms not in common use today for self-defense.” United States
v. Perez-Garcia, 96 F.4th 1166, 1180–81 (9th Cir. 2024) (quotation marks omitted).
The burden falls on the State, and it can do so only by “affirmatively prov[ing]” a
justifying “historical tradition.” Bruen, 597 U.S. at 19.
16
B. The State has not met its burden to prove that the arms at issue are
uniquely dangerous and are not in common use.
“[H]istorical tradition” shows that states can ban arms that are “dangerous and
unusual” consistently with the Second Amendment, Bruen, 597 U.S. at 21, if the
State proves both “that the weapon has uniquely dangerous propensities” and that
the weapon is not “commonly possessed by law-abiding citizens for lawful
purposes” today. Fyock, 779 F.3d at 997; Bruen, 597 U.S. at 47.
This test is “conjunctive”: “A weapon may not be banned unless it is both
dangerous and unusual.” Caetano, 577 U.S. at 417 (Alito, J., concurring).9 If the
State’s evidence fails either prong, its arms ban is unconstitutional. Id. at 420
(concluding banning stun guns—“widely owned and accepted” weapons—“violates
the Second Amendment”); Bruen, 597 U.S. at 47. The State proved neither.
Uniquely Dangerous Propensities. The State’s sole argument is that the
prohibited arms “are particularly dangerous” because of “their concealability and
striking power.” State.Br.29. That argument is woefully insufficient. There is
nothing uniquely dangerous to wooden sticks about concealability or propensity to
9
If it were not conjunctive, Second Amendment analysis would collapse.
“[V]irtually every covered arm” could be banned if mere dangerousness were
enough, and Heller would have come out differently. Caetano, 577 U.S. at 418
(Alito, J., concurring). If uncommonness were enough, then the State could ban arms
with technological advancements that make them safer. Neither possibility has any
basis in text, history, or precedent.
17
cause bodily harm. Fyock, 779 F.3d at 997; see DeCiccio, 105 A.3d at 198 (holding
that police batons “are neither especially dangerous nor unusual”). If those
characteristics were enough, Heller would have come out differently. It didn’t.
Common Use. A weapon is not unusual if “typically possessed by law-
abiding citizens for lawful purposes.” Heller, 554 U.S. at 625. Self-defense is a
lawful purpose, Bruen, 597 U.S. at 32, but others—like “target shooting”—also
suffice, Friedman v. City of Highland Park, 136 S. Ct. 447, 449–50 (2015) (Thomas,
J., dissenting from the denial of certiorari). The State has not proven that the arms
prohibited by California’s exceptionally broad Billy Ban are not in common use for
lawful purposes. The opposite is true: these instruments are used by ordinary people
for all kinds of lawful purposes including self-defense and, in the cases of canes and
walking sticks, assisting mobility. Six million Americans rely on canes every day.10
Start with batons and clubs. Multiple courts have held that those items are in
common use. See DeCiccio, 105 A.3d at 198 (police batons); Kessler, 619 P.2d at
100 (clubs). They are the “simplest and oldest weapon,” and even today “more
Americans undoubtedly possess blunt force instruments than guns.” Ruben, supra,
107 Iowa L. Rev. at 192, 209. California is the only state that blanketly bans them.
10
Gell, supra note 4, at 855.
18
The State’s argument completely crumbles when considering the limitless
breadth of California’s ban. Every day, Americans use the “ordinary” and “innocent”
objects prohibited by the ban for self-defense and other lawful purposes. Baugh, 20
Cal.App.5th at 443–46. Some older Americans across the country even go so far as
to train to use “their canes . . . as weapons of self-defense through a fighting
technique known as ‘cane fu’”: this self-defense technique allows older Americans,
in their words, “to take care of ourselves,” to “feel safe,” and to “defend yourself”
without resort to lethal force.11 Others find “empower[ment]” and “confidence”
through reliance on the cane for self-defense.12 But California outlaws self-defense
by cane. Additional lawful purposes abound. Six million Americans use a cane for
mobility. Supra note 4. Californians carry walking sticks in state parks, with the
encouragement of California State Parks to use them for self-defense and mobility.13
There are a great many reasons why law-abiding citizens opt for non-lethal
impact weapons, including reliance on ordinary blunt objects like canes and sticks.
“Countless people may have reservations about using deadly force, whether for
11
From Cane to Weapon: Senior Citizens Fight Back with Cane Fu, ABC News
(Sept. 5, 2012) [link].
12
Yamamoto, supra note 5.
13
Junior Ranger Program Handbook at 256, Cal. State Parks (revised 2011) [link]
(“A sturdy walking stick is a good idea; it can be used to ward off a lion.”).
19
moral, religious, or emotional reasons.” Caetano, 577 U.S. at 421 (Alito, J.,
concurring). Many people live in states—like California—with onerous restrictions
on who may possess a firearm or where that firearm can be carried. Cal. Penal Code
§ 26840 (firearm safety certificate requirement); Cal. Penal Code § 26230 (sensitive-
places restrictions). And still others, like older Americans, might have physical
limitations that make other forms of armed self-defense untenable.
Upholding California’s ban by finding that virtually all blunt objects are not
sufficiently common would defy common sense. It would also have the effect of
forcing citizens to use “more force for self-defense than they are comfortable
wielding,” Caetano, 557 U.S. at 421 (Alito, J., concurring), and, even worse, leave
many defenseless. No precedent, tradition, or fact basis supports foreclosing a law-
abiding citizen’s preference for non-lethal self-defense and use of ordinary blunt
objects to effectuate that preference. Courts must protect—not vitiate—law abiding
citizens’ right to arm themselves for self-defense in light of the legal, moral, and
practical limitations they confront.
The instruments prohibited by California’s ban are not uniquely dangerous,
and they are commonly used for countless lawful purposes including self-defense.
California certainly has not carried its burden of demonstrating otherwise, and that
is sufficient to affirm the district court’s judgment. Because these instruments are
20
“widely owned and accepted as a legitimate means of self-defense across the
country,” California’s “categorical ban of such weapons therefore violates the
Second Amendment.” Caetano, 557 U.S. at 420 (Alito, J., concurring). Bruen made
this clear: “weapons that are unquestionably in common use today” cannot be
banned. 597 U.S. at 47. “[T]he traditions of the American people . . . demand[] our
unqualified deference,” id. at 47, and the dispositive tradition is that law-abiding
citizens may keep and bear arms that are “in common use.” Heller, 554 U.S. at 627.
III. California failed to prove that its Billy Ban is consistent with this Nation’s
historical tradition of arms regulation.
The State has also failed to “affirmatively prove” a “comparable,” “enduring,”
and “well-established” “historical tradition” that could support its ban. Bruen, 597
U.S. at 19, 27, 30, 67. That is true under the “straightforward” analysis applicable
here, as well as under analogical reasoning.
A. The ban fails under the “straightforward” analysis.
Bruen held that the historical inquiry is often “straightforward”:
[W]hen a challenged regulation addresses a general societal problem

that has persisted since the 18th century, the lack of a distinctly similar
historical regulation addressing that problem is relevant evidence that
the challenged regulation is inconsistent with the Second Amendment.
Likewise, if earlier generations addressed the societal problem, but did
so through materially different means, that also could be evidence that
a modern regulation is unconstitutional.
597 U.S. at 26–27. This analysis governs here for several reasons.
21
There is a rich tradition of using blunt weapons for defensive purposes. In the
late 1700s, carrying a stick or cane became a popular form of self-defense in Europe
and America.14 The Irish martial art of bataireacht, where people “protected
themselves with supposed walking sticks” and “shillelagh,” “boomed in the 1700s
[in Ireland] after the occupying British banned Irish people from carrying many
types of weapons.”15 British fencing instructor, Andrew Lonnergan, wrote in 1771
that the “cane or stick” can provide “more room for your blow” and “may be more
powerful” as compared to a sword.16 In 1798 Boston, former Sons of Liberty
member and fencing instructor Robert Hewes advertised lessons to “enable a person
to defend himself with a cane,”17 as martial arts instructors continue to do today,
supra notes 5, 11. This robust Anglo-American historical tradition holds particular
significance in light of the absence of any historical bans.
The State cannot deny that violence involving blunt weapons existed before,
during, and after the founding, which confirms that “straightforward” analysis
14
Ben Miller, A History of Cane Self-Defense in America: 1798-1930, Martial Arts
New York (Aug. 16, 2016) [link].
Ronan O’Connell, Bataireach: The ancient Irish martial art making a comeback,
15
BBC (Oct. 17, 2022) [link].

16
Miller, supra note 14.
17
Id.
22
governs. The State’s brief admits that “[d]uring the colonial and founding era, most
violent crimes were committed with weapons such as clubs, dirks, and daggers.”
State.Br.34 (emphasis added); see 5-ER-817 through 819. And important moments
in American history reflect the use of blunt instruments. A catalyst of the 1770
Boston Massacre was that “colonists struck the [British] soldiers with clubs and
sticks,” which led them to open fire.18 Violence involving blunt instruments—
including clubs, sticks, and canes—has persisted ever since. In 1856, a
Massachusetts senator was beaten with a cane on the floor of the Senate Chamber.19
California’s Billy Ban prohibits the possession of “any instrument or weapon
of the kind commonly known as a billy.” Cal. Penal Code § 22210. This statute
encompasses all sorts of ordinary objects that would facilitate self-defense. But the
State points to no historical laws from any possibly relevant era that categorically
banned possession of virtually any instrument resembling a blunt object, such as
clubs, batons, canes, sticks, and other ordinary objects wielded by law-abiding
citizens for self-defense. The State’s failure to show any distinctly similar tradition
is determinative evidence that California’s Billy Ban is unconstitutional.
18
Boston Massacre, History (last updated Aug. 11, 2023) [link].
19
The Caning of Charles Sumner, United States Senate [link].
23
The State does point to evidence that some “colonies and early States
prohibited the carrying of clubs and similar weapons increasingly used as fighting
instruments,” State.Br.35 (emphasis added), and that some states and cities
eventually regulated the intent or manner of carrying a billy club, id. at 37. These
few examples do not constitute a sufficiently robust tradition of regulations; even if
they did, they are not distinctly similar in burden and cannot justify the Billy Ban.
All they do is confirm that California’s ban fails under the straightforward analysis.
The State’s evidence proves that “earlier generations addressed the societal
problem” of violence involving blunt instruments “through materially different
means.” Bruen, 597 U.S. at 26–27. California’s Billy Ban is an “outlier[] that our
ancestors would never have accepted.” Id. at 30 (citation omitted).
B. The ban fails under analogical reasoning.
California cannot rely on analogical reasoning—the “more nuanced
approach”—because sticks and violence involving sticks are not “new” but have
existed since the beginnings of civilization itself. See Bruen, 597 U.S. at 26–27; id.
at 27, 30 (reserving analogical reasoning for “unprecedented societal concerns,”
“dramatic technological changes,” or “new” issues). Even if reasoning by analogy
were appropriate, the State has still failed to “affirmatively prove” that a
“comparable tradition of regulation” supports the challenged law. Id. at 19, 27.
24
For a law to qualify as a “proper analogue,” the State must show that the law
is “relevantly similar” based on “how and why the regulations burden a law-abiding
citizen’s right to armed self-defense.” Id. at 28–29. A historical law cannot serve as
an analogue if it does not “impose a comparable burden” that is “comparably
justified.” Id. at 29. The State’s evidence also must evince a tradition that is both
“well-established and representative.” Id. at 30.
The proffered tradition must also be sufficiently historical. Id. at 37–39. The
correct holding is that only founding era understandings can establish historical
tradition, while post-founding sources serve as “confirmation” of the earlier
understandings. See id. at 37; Lara v. Comm’r Penn. State Police, 91 F.4th 122, 129
(3d Cir. 2024) (government “identify a ‘founding-era’ historical analogue”). Rights
applied against states generally must “have the same scope as against the Federal
Government,” Bruen, 597 U.S. at 37, lest “only a watered-down” version applies
against states, McDonald v. City of Chicago, 561 U.S. 742, 765 (2008). This is how
the Supreme Court interprets other Bill of Rights guarantees,20 and it dooms the
State’s reliance on historical laws from Reconstruction and later. But see Teter, 76
F.4th at 951 (permitting reference to laws enacted “close in time to . . . 1868”).
20
Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 482 (2020); Ramos v.
Louisiana, 590 U.S. 83, 89–92 (2020).
25
The State begins by claiming a tradition of banning “especially dangerous
weapons.” State.Br.32–33. But the Supreme Court recognized only a tradition of
prohibiting weapons that are dangerous and unusual, Bruen, 597 U.S. at 47, and the
State proved neither. There is nothing uniquely or especially dangerous about canes
and sticks, which are obviously more comparable to a hammer than dynamite.
As for billy club regulation, the State cites four state laws that banned their
concealed carry between 1866 and 1887 and six municipalities that banned their
concealed carry between 1862 and 1898. State.Br.37–38. It also cites an 1882 West
Virginia law that banned all carry. Id. at 38. But these laws do not evince a tradition
that could justify California’s Billy Ban. First, they are too late to establish historical
tradition, if for no other reason than because they “contradict[] earlier evidence” that
earlier generations freely carried blunt instruments for self-defense. Bruen, 597 U.S.
at 66; Espinoza, 591 U.S. at 482 (holding “development” that “arose in the second
half of the 19th century” could not “establish an early American tradition”). Second,
they largely only banned concealed carry (one banned all carry), which is not a
“comparable burden” to California’s ban on possession. Bruen, 597 U.S. at 29.
Bruen held that laws restricting the manner of carry could not justify banning all
carry, id. at 38, which means those restrictions cannot justify a more-burdensome
ban on possession of all blunt objects. See Teter, 76 F.4th at 951–52; Maryland Shall
26
Issue, Inc. v. Moore, 86 F.4th 1038, 1046 n.9 (4th Cir. 2023) (holding Bruen’s dicta
about “shall-issue carry regimes” did not justify “more burdensome restrictions, like
shall-issue possession regimes”), reh’g en banc granted, 2024 WL 124290 (4th Cir.
Jan. 11, 2024).
The State cites a few regulations of billy clubs limiting the intent for which
one could use them. State.Br.37–38. New York’s 1866 law generally required
“intent to use [the weapon] against any other person.” 1866 N.Y. Rev. Stat. ch. 716,
§§ 1–2, reprinted in Throop, Revised Statutes of the State of New York, Vol. 3, at
2512 (1882). Florida in 1868 similarly criminalized being “armed” with a billy while
“committing a criminal offense.” 1868 Fla. Stat., ch. 1637, reprinted in Blount, et
al., Rev. Stats. of Fla. 782–83, tit. 2, art. 5, § 2423 (1892). But Bruen already rejected
this analogy: a restriction on “the intent for which one could carry arms” cannot
justify an outright ban on carry, let alone a categorical ban on possession that covers
a far broader swath of instruments. 597 U.S. at 38. These historical laws are as
inapplicable as the Northampton-style laws barring carry with intent to “terrify,”
which Bruen rejected as improper analogues for carry bans. 597 U.S. at 44–56, 69–
70.
The State repeats the same errors by citing 19th century laws restricting other
kinds of weapons. It cites various laws restricting “the carrying of Bowie knives and
27
other fighting knives,” State.Br.40, but that effort fails for the same reasons as above:
restrictions on carry are not comparable burdens, and restricting a fighting knife is
not remotely analogous to a ban on virtually all blunt objects including sticks and
canes.21 The State also cites two 1849 statutes restricting the possession and use of
slungshots (a weighted object tied to the end of a rope) but only “as against any other
person,” 1849 N.Y. Laws 403–404, ch. 278, §§ 1–2; 1849 Vt. Acts & Resolves 26,
No. 36, §§ 1–2, and an 1881 Illinois statute that banned all slungshot possession,
1881 Ill. Laws 73, § 1. These statutes fail to establish a tradition for several reasons.
First, they do not show a “comparable burden” because they largely banned only
carry. Bruen, 597 U.S. at 29. Second, the citation to “three restrictions” was
“doubt[ed]” to “suffice to show a tradition” in Bruen, and it fails here. Id. at 46.
Third, narrow regulations of slungshots did not restrict possession of arms
comparably to California’s ban of any blunt object that could be used for self-
defense. And finally, the district court did not enjoin the statute as to slungshots; it
only enjoined the State “from implementing or enforcing California Penal Code §
22210 as it applies to a billy.” 1-ER-2.
21
The State cites an 1837 Georgia statute that barred “keep[ing]” or “hav[ing]” a
Bowie knife, which the State presents as a ban on possession. State.Br.40–41 (citing
1837 Ga. Acts. 90, § 1). But the statute in § 4 excludes open carry from its scope,
which shows that it merely banned concealed carry and is not comparable in breadth
or burden to the Billy Ban. Teter, 76 F.4th at 951–52.
28
The only historical example of a possessory ban of virtually all blunt objects
is the 1917 California statute challenged here. It is an ahistorical outlier, and the
State has not met its burden to prove otherwise.
IV. California’s broadly and vaguely worded ban raises serious due process
concerns and violates Bruen’s admonition against governmental
discretion.
A criminal statute is void for vagueness if it fails to give “fair notice of the
conduct it punishes” or is “so standardless that it invites arbitrary enforcement.”
Johnson v. United States, 576 U.S. 591, 595 (2015). The Bruen Court likewise
expressed deep concern about state licensing regimes that confer “open-ended
discretion” to the state officials responsible for regulating the right to keep and bear
arms. See 597 U.S. at 79 (Kavanaugh, J., concurring). These concerns weigh
strongly against California’s Billy Ban, which invites arbitrary enforcement by
handing limitless discretion to prosecutorial officials.
California’s ban appears to criminalize the possession of “ordinary” and
“innocent” blunt objects, so long as the possessor would use it for self-defense “if
the need arose.” Baugh, 20 Cal.App.5th at 443–46. That is hardly a predictable
“standard[]” that inters “arbitrary enforcement.” Johnson, 576 U.S. at 595. The only
limiting principle on the statute’s reach is the “unchanneled discretion” yielded by
prosecutorial officials. Bruen, 597 U.S. at 79 (Kavanaugh, J., concurring). Such an
29
arbitrary, limitless criminal law stands fundamentally at odds with due process,
Bruen, and our Nation’s other constitutional values.
Like all citizens, older Americans need fair notice of what conduct California
prohibits, not vague and broad prohibitions limited only by prosecutorial discretion.
The State’s preference for arbitrary enforcement only cheapens the law. Those
citizens also need a practical way to defend themselves, yet California has
criminalized the use of ordinary instruments like sticks and canes—in defiance of
the Second Amendment’s “unqualified command.” Id. at 17. California’s Billy Ban
is unconstitutional. It was properly enjoined.
CONCLUSION
For the foregoing reasons, the district court’s judgment should be affirmed.
Dated: June 13, 2024 Respectfully Submitted,
/s/ John Parker Sweeney

John Parker Sweeney
James W. Porter, III
W. Chadwick Lamar Jr.
Bradley Arant Boult Cummings LLP
1615 L Street N.W., Suite 1350
Washington, D.C. 20036
Phone: 202-719-8216
Facsimile: 202-719-8316
jsweeney@bradley.com
30
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Fouts Amicus Brief of Mature American Citizens

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Case: 24-1039, 06/13/2024, DktEntry: 20.

IN THE UNITED STATES COURT OF APPEALS

ROB BONTA, IN HIS OFFICIAL CAPACITY AS

On Appeal from the United States District Court

BRIEF OF THE ASSOCIATION OF MATURE AMERICAN CITIZENS AS

John Parker Sweeney

Counsel for Amicus Curiae

CORPORATE DISCLOSURE STATEMENT

that it is a nongovernmental corporation that has no parent corporation and that no

publicly held corporation owns 10% or more of its stock.

Dated: June 13, 2024 /s/ John Parker Sweeney

Counsel for Amicus Curiae

District of Columbia v. Heller,

Maryland Shall Issue, Inc. v. Hogan,

McDonald v. City of Chicago,

United States v. Alaniz,

United States v. Duarte,

1837 Ga. Acts. 90, §§ 1, 4........................................................................................ 28

1849 N.Y. Laws 403–404, ch. 278, §§ 1–2 ............................................................. 28

1849 Vt. Acts & Resolves 26, No. 36, §§ 1–2......................................................... 28

1917 Cal. Stat. 221, ch. 145, § 1 ................................................................................ 3

Ben Miller, A History of Cane Self-Defense in America: 1798-1930,

Boston Massacre, History (last updated Aug. 11, 2023) ......................................... 23

California’s Population Aged 65 Years and Older, Cal. Health

Crime in California 2022, Cal. Dep’t of Just. ...........................................................ix

Eric Ruben, Law of the Gun: Unrepresentative Cases and Distorted

Junior Ranger Program Handbook, Cal. State Parks (revised 2011)....................... 19

Ronan O’Connell, Bataireach: The ancient Irish martial art making a

Ryan Yamamoto, Oakley seniors train with canes for self-defense,

The Caning of Charles Sumner, United States Senate ............................................ 23

towards this brief.

INTEREST OF AMICUS CURIAE

The Association of Mature American Citizens (“the Association”) is a

membership organization focused on the needs of America’s older citizens 50 years

members in the State of California. Roughly 15% of California’s population is 65 or

older, and that percentage is expected to grow.1 The Association is committed to

enriching the lives of all Americans and safeguarding Americans’ constitutional

arms for all lawful purposes such as self-defense.

Older Americans face “significant” threats of victimization.2 In California in

Amendment is of tremendous significance to the Association and its members. The

enforcement of California’s “Billy Ban.”

California’s categorical Billy Ban sweeps much further: it criminalizes the

California’s Billy Ban also appears to criminalize an older American’s possession

California’s “purposely broad” statute criminalizes if the citizen has self-defense in

street without risking criminal prosecution.

California’s vaguely worded and limitlessly broad Billy Ban is an “outlier[]

Amendment’s ‘unqualified command,’” id. at 17 (quoting Konigsberg v. State Bar

right of resistance and self-preservation” which entitles citizens to armed self-

language). Although “billy,” in isolation, refers to a club or baton, People v. Leffler,

statute on its law books, demonstrating that it truly is an outlier.

innocent uses” so long as “the object was possessed as a weapon.” Baugh, 20

is possessed for “self-defense” is outlawed by California’s Billy Ban. Baugh, 20

for a weapon and had a willingness to use it.” Id. at 446.

California’s courts have not addressed whether possession for concurrent

purposes served by [the object’s] legitimate design instead of those proscribed by

82, 89 (1968), superseded by statute). The Billy Ban criminalizes possession of

momentary contemplation of “self-defense.” Id.; Baugh, 20 Cal.App.5th at 443–46.

63 Cal. 2d at 621 (contrasting “possession of a table leg . . . carried at night in a

convictions based on ordinary objects like “a small wooden bat,” Baugh, 20

2011 WL 1648254, at *2, *4 (Cal. App. May 3, 2011), a “mini sledgehammer,”

2011 WL 1648254, at 2, 4 (Cal. App. May 3, 2011), a “mini sledgehammer,”