Court Considers Striking Down California Ban on Advertising Handguns Outside A Gun Store


The Calguns Foundation writes [via Ammoland.com]

Attorneys for five gun California dealers have filed a motion for summary judgment to strike down a state law that bans the on-site advertising of handguns outside of gun store in a federal First Amendment civil rights. California Penal Code section 26820, first enacted in 1923, bans gun stores from putting up signs advertising the sale of handguns — but not shotguns or rifles.

Tracy Rifle and Pistol, a firearm retailer and indoor shooting range located in San Joaquin County, was cited by Attorney General Kamala Harris’ Department of Justice for having pictures of three handguns in window signs that can be seen outside the store. An adjacent window image at Tracy Rifle, which shows a photograph of an AR-15 rifle, was not cited by the DOJ.

The lawsuit claims that the State’s restriction violates First Amendment rights by severely restricting truthful, non-misleading commercial speech. “Section 26820 imposes a content- and speaker-based burden on protected expression that is, in practice, viewpoint-discriminatory, and imposes an intolerable burden on the right of firearms dealers to advertise accurate information about the sale of handguns,” the lawsuit’s complaint alleges.

“The First Amendment prevents the government from telling businesses it disfavors that they can’t engage in truthful advertising,” said lead counsel Bradley Benbrook. “This case follows a long line of Supreme Court cases protecting such disfavored businesses from that type of censorship.”

In a prior order denying a preliminary injunction in the case, Federal Eastern District of California Judge Troy L. Nunley said that, “On balance – based on the arguments and evidence currently before the Court – the Court also finds it is more likely than not that Plaintiffs will succeed on the merits of their First Amendment claim.”

Though the case doesn’t claim a Second Amendment violation, plaintiffs do argue that commercial advertisement of products and services that are themselves held to be protected under the constitution — whether abortion, contraceptives, or guns — is especially clearly protected under the First Amendment.

The plaintiffs are represented by Bradley Benbrook and Stephen Duvernay of the Sacramento-based Benbrook Law Group as well as Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments.

The State of California also filed a motion for summary judgment in the case today. The cross-motions for summary judgment in Tracy Rifle and Pistol LLC, et al. v. Kamala Harris, et al., will be heard before Judge Nunley at 2:00 p.m. on Thursday, January 12, 2016.

The new case filings can be viewed here.

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About The Calguns Foundation:

The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to defend and advance Second Amendment and related civil rights.

Supporters may visit http://www.calgunsfoundation.org/donate to join or donate to CGF.

comments

  1. avatar Curtis in IL says:

    Liberals love to wrap themselves in the First Amendment when it suits their purposes (i.e. flag burning, blocking public roadways for protest marches, etc.).

    Otherwise, not so much. Their hypocrisy is breathtaking.

    1. avatar nativeson says:

      If the First Amendment still has any meaning in California, the court will strike down this patently unconstitutional law. Clearly, the state is censoring speech. There is no valid compelling state interest being furthered here – nothing analogous to ‘screaming fire in a crowded theater’. It’s just discriminatory censorship intended to destroy a particular lawful industry.

    2. avatar Cliff H says:

      May be why blue is the color of Liberal dominated states.

  2. avatar Mk10108 says:

    Ms. Harris is now a Senator elect who ran virtually unopposed by a token fellow female democrat and republicans took a pass. Now democrats through redistricting have a lock on the state legislative, removed more guns from the CA approve list and soon to make every AR owner a felon after purchasing a legally approved rifle and now requires a background check to purchase ammo.

    It’s not about dam sign in a window.

  3. avatar Tom in Oregon says:

    It just floors me that this ban on advertising even exists.

    1. avatar Swilson says:

      Agreed. It’s pretty absurd: does California think that citizens do not know what is for sale in a gun shop? Or is it they think that the sight of a gun advertisement is just too traumatizing?

    2. avatar Swilson says:

      Alcohol ads A-Okay though.

    3. avatar Jonathan - Houston says:

      Me, too. This seems like an historical oddity, an embarrassment from a bygone era, along the lines of coverture and race-specific water fountains.

      This should be a footnote in a high school history textbook, not a federal case deep into the 21st century.

      1. avatar Sam I Am says:

        The law is race-specific. Original intent was to prevent people of color from finding legal outlets for handguns. Only people in the know (white) understood how things worked. At the bottom of all liberals is racism. (Yes, believing that certain peoples can never be self-sufficient, especially non-whites, and need the benevolence and largess of “good people” and government all their lives is absolutely racism).

        But we musn’t let those needy people get their hands on revolvers and pistols. Such people lack the moral fiber and self-control to keep them from running amok and harming the helping hands.

        1. avatar styrgwillidar says:

          Exactly– the whole point of attacking cheap weapons ‘Saturday Night Special’ (a term with a racist origin– N—town Saturday Night) was they were the ones the poor/African Americans could actually afford.

  4. avatar Omer Baker says:

    Abortion – the only murder considered a right by the constitution that’s never mentioned in the constitution.

    1. avatar Warren says:

      I’m sorry, I missed the paragraph where we were discussing abortion.

  5. avatar Sam I Am says:

    This might be interesting to follow, but likely not. Eventually this will get to 9th Circuit, where the default decision is “public safety”, first.

    Everyone knows guns pose a safety risk to the general public, guns kill, guns injure, the right of society to feel safe is superior to alleged rights to personally own and carry a firearm. Abortions don’t injure innocent bystanders (i.e. real, live persons), contraceptives prevent emotional distress and injury for the mother who needs to avoid responsibility for unprotected sex. Handguns are just different from any other product. And they are downright scary to hold, touch, look at. Just the mention of a handgun can cause depression, fear, sense of dread, and induce the same tragic outcomes as a person who is personally violated in any other way.

    States have the right to control dangerous items inside their borders. Ban ALL advertising for guns, everywhere, all the time.

    Whew! Glad I got that out of my system.

    1. avatar Pantera Vazquez says:

      “…….And they are downright scary to hold, touch, look at.”

      Bwa hahahahahah.

      Most among US will disagree……

      while feeling pity towards those who don’t.

    2. avatar Geoff PR says:

      “States have the right to control dangerous items inside their borders.”

      Like ‘The Pen is Mightier than the Sword’ newspapers? Lots of dangerous information in newspapers.

      *Fail* {yet AGAIN)…

      1. avatar Sam I Am says:

        You still aren’t reading carefully. Recommend a more observant approach.

  6. avatar former water walker says:

    Aren’t they allowed to use the word “GUNS” on their store?!? All the gunshops near me have that notification(except big box stores like Cabelas). And I have seen those scary pics of guns in front-but it’s an Indiana gun shop.just more evil Commiefornia BS.

  7. avatar Ralph says:

    The restriction on pictures of handguns makes sense when you think about it.

    Based on the way they vote, there’s a strong presumption that most Californians are Mexicans and can’t read English, but they do understand primitive line drawings and such.

    By banning pictures, the government can keep the idiots safe. See?

    1. avatar Sam I Am says:

      Now that is something. Hadn’t quite captured the Californicated mind, but you just may have opened the book !

      Thanks

  8. avatar S.CROCK says:

    Uhhh yay. But this is such a small infringement. I wish this time and money could be put to something else. How about our mag capacity, registration, micro stamping, waiting period on every purchase, approved handgun roster. Yea California needs some work.

  9. avatar IYearn4nARnCali says:

    Can we next work on banning onsite advertising of fast food retailer’s? The chemicals they sell as food, contribute more deaths annually than all the firearms in the US; and food is necessary to continue living. CA can’t get on that with a quickness, which is far more pressing, but they can mess with 2nd Amendment proponents 24/7, 365.

  10. avatar Roymond says:

    Step one: pictures of guns are free speech.

    Step two: wearing a gun is free speech.

  11. avatar Mark N. says:

    I don’t recall when the relevant Penal Code section was enacted, but I am guessing it was a long time ago before background checks. The State, in fact, says that the law is a valid restriction on speech because it helps prevent “impulse purchases.” (It really does.) The state claims that this is an overriding public safety concern. Of course, it completely ignores the fact that there is a ten day waiting period in California–and any “impulse”, homicidal or suicidal, will be long gone before the gun is delivered. From Plaintiff’s moving papers:

    The State’s argument that Section 26820 directly advances its public safety interest rests on a peculiar hypothetical. It imagines a person who is in the grip of some “emotion” (presumably anger or despair), who would not enter a firearms dealership to buy a handgun in the absence of on-site advertising—even though he is seized by an emotion that presumably makes him contemplate violence, and even though everyone knows that handguns are commercially available.
    That the store has signs saying “Guns” and signs depicting rifles or shotguns does not influence him at all. That handguns are constantly in the news and in entertainment media does not influence him at all. But when he sees the word “handguns” or a picture of a handgun on a store sign, he responds on “impulse,” and buys a handgun that he otherwise would not buy. He then leaves the firearms dealer and proceeds to commit a handgun crime (or commit suicide)

  12. avatar BCE56 says:

    Impulse buying, hey?

    (check the name of this gun store.)

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