Second Amendment Update: Possession of a Billy Club per Pen. Code § 22210
By Robert Phillips, Deputy District Attorney (Ret)  

In February of this year, a federal district (trial) court published a case decision entitled Fouts v. Bonta (Feb. 23, 2024) 2024 U.S.Dist. LEXIS 31528. In this written decision, the Honorable Roger T. Benitez ruled that a person’s possession of what is known as a “billy club” is constitutionally protected under the Second Amendment, as dictated by the U.S. Supreme Court decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen (2022) 597 U.S. 1 [142 S.Ct. 2111; 213 L.Ed.2nd 387].)   

Until this decision, pursuant to Pen. Code § 22210 (formerly P.C. § 12020(a)): one who “manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any leaded cane, or any instrument or weapon of the kind commonly known as a billy, . . .” (among other weapons) was guilty of a felony.  Although not defined, the District Court noted that: “Historically, the short wooden stick that police officers once carried on their beat was known as a billy or billy club. (fn.) The term remains vague today and may encompass a metal baton, a little league bat, a wooden table leg, or a broken golf club shaft, all of which are weapons that could be used for self-defense but are less lethal than a firearm.” 

My belief, until now, has been that Bruen and the Second Amendment deal only with firearms.  Judge Benitez tells us, however, that I don’t know what I’m talking about.  Per Judge Benitez: “Americans have an individual right to keep and bear arms, whether (we’re talking about) firearms or less lethal arms. (fn.) The Second Amendment to the United States Constitution ‘guarantee[s] the individual right to possess and carry weapons in case of confrontation.’” (Italics added: District of Columbia v. Heller (2008) 554 U.S. 570, 606, 630 [128 S.Ct. 2783; 171 L.Ed.2nd 637].)  As such, it must be conceded that the Second Amendment applies to weapons other than just firearms.  For instance, as cited in the Fouts decision, it has been held that the use of “a less than lethal stun gun” for self-defense is protected by the Second Amendment. (See Caetano v. Massachusetts (2016) 577 U.S. 411 [136 S.Ct. 1027; 194 L.Ed.2nd 99].) 

You could have fooled me. 

So, as a result, Judge Benitez in Fouts rambles on through the typical historical analysis as required by the Bruen decision, looking to see what our Forefathers thought about billy clubs.  As noted by the Court: “Under Bruen, the government must affirmatively prove that its criminal statute prohibiting possession of a billy is part of our historical traditions.”  Upon doing so, the Court noted that; “(t)he American tradition is rich and deep in protecting a citizen’s enduring right to keep and bear common arms, whether they be rifles, shotguns, pistols, knives, or less lethal arms like stun guns and billies.” In a nutshell, the Court ultimately held that “it is quite clear that there is no national historical tradition of prohibiting the simple possession, or the open carrying, of a billy evident during the important period of history when lawmakers still had an unmolested conception of the original meaning of the Second Amendment.”  As such, the Court found that Pen. Code § 22210’s attempt to outlaw the possession of a billy club violates the Second Amendment.  

The Court finding this prohibition to be severable from the rest of Pen. Code § 22210’s provisions, the ruling here deals only with billies.  As such, the Court ordered a permanent injunction, prohibiting the enforcement of section 22210 so far as it purports to outlaw the possession of a billy.  That injunction was subsequently formalized by a written injunction (2024‐DLE‐08) from the California Attorney General’s Office, issued on August 9, 2024.   

I am informed by the Attorney General’s Office that the decision in Fouts has been appealed to the Ninth Circuit, but that the appeal has been “administratively closed” subject to being reopened and argued after resolution of two other pending cases by the Ninth Circuit: Duncan v. Bonta, No. 23-55805, dealing with large capacity magazines (P.C. § 32310), and Teter v. Lopez, No 20-15948, dealing with butterfly knives (Haw. Rev. Stat. § 134-53(a))  Pending all these appeals, however, I’m told by the Attorney General’s Office that this injunction prohibiting enforcement of Pen. Code § 22210, as it relates to billy clubs, is indeed currently effective, at least pending a contrary ruling from the Ninth Circuit Court of Appeals.   

Bottom line: It’s legal, under the Second Amendment, to possess a billy club.   

My thanks to San Diego Sheriff’s Sgt. Jason Scroggins for bringing this issue to my attention.