Wednesday, September 4, 2013
Second Amendment Does Not Create Right to Arm Oneself With a ‘Billy,’ Appellate Division Holds
By a MetNews Staff Writer
The Second Amendment right to bear arms does not include the right to carry a dangerously modified baseball bat for one’s self-protection, the Ventura Superior Court Appellate Division has ruled.
In a Jan. 7 opinion, which was ordered published Feb. 5 and was posted yesterday on the state courts’ website, the court affirmed David Edward Liscotti’s conviction for possession of a “billy,” in violation of Penal Code Sec. 12020(a)(1), now Sec. 22210.
Liscotti agreed last year to a bench trial, and prosecutors agreed to submit their side of the case on police reports indicating that Liscotti was found in possession of a baseball bat—concealed behind a car seat—that was altered by boring a hole in the center of the bat—which was wrapped in nylon—and placing a metal bolt at the core. Liscotti testified that he personally did the altering, and that he carried it in case he needed it for “self defense.”
He said he had used the device only once, in what he called a “private one-on-one.”
Superior Court Judge Ryan Wright rejected his claim that the statute is unconstitutional, either on its face or as applied.
The appellate pane—Presiding Judge Henry J. Walsh and Judges Nancy L. Ayers and Matthew P. Guasco—agreed in a per curiam opinion.
The court distinguished District of Colombia v. Heller (2008) 554 U.S. 570, which held that there is an individual right to “use arms in defense of hearth and home” under the Second Amendment. It noted that Heller is limited to weapons “typically possessed by law-abiding citizens for lawful purposes” and that the high court specifically said that there is no right to carry “dangerous and unusual” weapons.
The panel wrote:
“The weapon in this case, a full size modified baseball bat, weighted with lead and wrapped in rope, does not appear to us to fall in to the classification of a weapon that would normally be possessed by a law abiding citizen for a lawful purpose. Instead, it appears to us to be a weapon which, by its very nature, increases the risk of violence in any given situation, is a classic instrument of violence, and has a home-made criminal and improper purpose. Likewise, it appears to be the type of tool that a brawl fighter or a cowardly assassin would resort to using, designed for silent attacks, not a weapon that would commonly be used by a good citizen.”
Nor, the judges said, does Liscotti’s assertion that he intended to use the weapon solely in self-defense make the statute unconstitutional as applied. Assuming the truth of the assertion, the court said, the challenge still fails because the law “is reasonably necessary to prevent the risk of great bodily injury, a surprise attack in the heat of passion, or a mistake in judgment which results in unnecessary use of a deadly weapon.”
The case is People v. Liscotti, 2010043342.
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