BREAKING: Federal Court Strikes Down California Law That Bans Handgun Signs, Advertising by Gun Dealers

Tracy Rifle and Pistol v. Becerra Calguns SAF

courtesy calguns.org

Back in 2014, four California gun dealers sued the the woman who was then acknowledged by presidential proclamation as the nation’s best-looking attorney general over a law that prohibited gun stores from displaying images of guns. On their stores. Or their signs.

Now, according to a press release from the Calguns Foundation, a federal judge has ruled that California’s law is a violation of the gun dealers’ First Amendment rights. Here’s that press release:

SACRAMENTO, CA (September 11, 2018)­­­­­­ – Today, federal Judge Troy Nunley ruled that a California law banning licensed gun dealers from displaying handgun-related signs or advertising is unconstitutional and violates their First Amendment rights. The lawsuit, Tracy Rifle and Pistol v. Becerra, is supported by Second Amendment civil rights groups The Calguns Foundation (CGF) and Second Amendment Foundation (SAF) as well as industry association California Association of Federal Firearms Licensees (CAL-FFL).

California Penal Code section 26820, first enacted in 1923, banned gun stores from putting up signs advertising the sale of handguns — but not shotguns or rifles. “But,” the court held today, quoting from the late Supreme Court Justice Antonin Scalia’s landmark Second Amendment 2008 opinion in D.C. v. Heller, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

While the law completely banned handgun-related signs, the “Plaintiffs could display a large neon sign reading ‘GUNS GUNS GUNS’ or a 15-foot depiction of a modern sporting rifle, and this would be permissible,” Judge Nunley explained in his order, highlighting how unreasonable and under-inclusive the law was. And even after four years of litigation, “the Government has not demonstrated that § 26820 would have any effect on handgun suicide or violence.”

The government defended the law on the theory that it “inhibits people with ‘impulsive personality traits’ from purchasing a handgun,” but Judge Nunley held that this cannot justify restricting free speech rights: “[T]he Supreme Court has rejected this highly paternalistic approach to limiting speech, holding that the Government may not ‘achieve its policy objectives through the indirect means of restraining certain speech by certain speakers.’” “California may not accomplish its goals by violating the First Amendment. . . . § 26820 is unconstitutional on its face,” Judge Nunley concluded.

“This is an important victory for our clients and for the First Amendment,” said lead counsel Brad Benbrook. “Judge Nunley decided that the State could not justify its censorship of our clients, and we are delighted with the opinion. As the Court explained today, the government cannot censor commercial speech in a paternalistic effort to keep citizens from making unpopular choices – or choices the government doesn’t approve – if they are told the truth.”

“Under the First Amendment, the government may not restrict speech on the theory that it will supposedly lead a few listeners to do bad things, or even to commit crimes,” explained Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments. “The Supreme Court has held this in the past, and has indeed often struck down restrictions on supposedly dangerous commercial advertising—including advertising for products that some people abuse, such as alcohol. It’s good to see the district court recognizing that the First Amendment has no gun advertising exception.”

“Today, the Court correctly ruled that the First Amendment protects truthful, non-misleading speech about handguns protected under the Second Amendment,” commented CGF Executive Director Brandon Combs. “People have a fundamental, individual right to buy handguns and licensed dealers have a right to tell people where they can lawfully acquire those handguns. Today’s ruling means that the government cannot prevent people, or gun dealers, from talking about constitutionally protected instruments and conduct.”

“This decision will serve as a reminder that firearms dealers have First Amendment rights as well as Second Amendment rights, even in California,” SAF founder and Executive Vice President Alan M. Gottlieb said. “The bottom line is that a state cannot legislate political correctness at the expense of a fundamental, constitutionally-enumerated right. We are delighted to offer financial support of this case.”

The plaintiffs are represented by Benbrook and Stephen Duvernay of the Sacramento-based Benbrook Law Group as well as Professor Volokh. They expect that today’s order in the long-running lawsuit, which was filed in 2014, will be appealed by Attorney General Becerra to the Ninth Circuit Court of Appeals in San Francisco.

A copy of the order can be viewed at https://www.calgunsfoundation.org/tracy-rifle-v-becerra.

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 advance Second Amendment and related civil rights.

Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

California Association of Federal Firearm Licensees (www.calffl.org) is California’s advocacy group for Second Amendment and related economic rights. CAL-FFL members include firearm dealers, training professionals, shooting ranges, collectors, gun owners, and others who participate in the firearms ecosystem.

You can read the judge’s ruling here, but the following paragraph is instructive.

The Government aims to stop a group of law-abiding adults with the shared personality trait of “impulsiveness” from making what it sees the bad decision of purchasing a handgun. The Government believes if it can inhibit such persons from making the initial decision to purchase a handgun, it will save them from harming themselves or others with the handgun at some later date, likely years from the initial purchase. However, the Government may not restrict speech that persuades adults, who are neither criminals nor suffer from mental illness, from purchasing a legal and constitutionally-protected product, merely because it distrusts their personality trait and the decisions that personality trait may lead them to make later down the road. Moreover, in the effort to restrict impulsive individuals from purchasing handguns, the Government has restricted speech to all adults, irrespective of whether they have this personality trait.1 Therefore, the Government impermissibly seeks to achieve its goals through the indirect means of restricting certain speech by certain speakers based on the fear that a certain subset of the population with a particular personality trait could potentially make what the Government contends is a bad decision.

comments

  1. avatar Michael Stilinovich says:

    Its about frick’n time.
    Now just overturn the other 2 million illegal laws against Second Amendment rights.

    1. avatar BLAMMO says:

      For each one that takes years to overturn in court, they can pass a dozen more in a single legislative session.

      The strategy of overturning unconstitutional laws in court is a loser. Always has been, always will be. What we need is more guns owned by more people who vote.

      1. avatar Mav says:

        Agreed, and Plus 1 here with this > “What we need is more guns owned by more people who vote.”
        AND I Hope We will get More Good people to Learn that Firearms is NOT the Problem! And Understand the whole 2nd Amendment is about FREEDOM!
        Heck, I was a member, supporting the NRA and VCDL acouple years before I even purchased my 1st firearm!

    2. avatar frank speak says:

      a minor victory, at best….

  2. avatar Green Mtn. Boy says:

    Of course it’s Un Constitutional,as is any other gun law.

  3. Bestest part of the whole thing:

    Troy Lynne Nunley, Judge of the United States District Court for the Eastern District of California. Appointed by…… wait for it…… Appointed by…… Heh…… Appointed by the one and only Barack Hussein ‘El Guapo’ Obama.

    Betcher bottom dolla, Judge Nunley is gonna get a typical Democrat nudge-ley quick-ley and harsh-ley.

    1. avatar Mark N. says:

      Well, maybe, but he has a life-time appointment, so I doubt he is worried.

  4. avatar Ing says:

    I couldn’t find the words to convey my heartfelt condolences to California’s progressive government for their painful loss, so I’ll leave this video link here instead.

    1. avatar Geoff "Mess with the Bull, get the Horns" PR says:

      Bookmarked.

      (Tipping hat…) 😉

  5. avatar Ralph says:

    And eventually the 9th Circus will rule that the 1st Amendment does not apply to guns in California, based on the logic that the 2nd Amendment does not apply to guns in California either.

    1. avatar barnbwt says:

      Yeah, apparently ” the right to keep and bear” only applies to what most people are allowed to do with their guns apart from owning them, in places they are allowed to bear them. I still can’t believe Feinstein tried such a ridiculous argument.

      1. avatar Chris. says:

        Hey; the 2nd says keep and beat… not 1 word about “buy”.

        If we take that to it’s logical conclusion “ghost guns” are now the only lawful weapons to be possessed in CA….

    2. avatar DaveL says:

      Of course, because this is the court that thinks “BUT GUNZ!” is a legal argument. But by the time they do reverse it, there’s a good chance we’ll have a Supreme Court willing to smack them down for it.

  6. avatar barnbwt says:

    Has a consortium of print, web, radio, and TV advertisers come out and sworn to deny business to gun sellers, and destroy any business that tries to serve them, yet?

  7. avatar former water walker says:

    Good luck Commiefornia…

  8. avatar uncommon_sense says:

    As I have stated before, the Second Amendment is simply the “canary in the coal mine” of rights: government actors who are content to violate our Second Amendment right to keep and bear arms are all too happy to violate our other rights as well, such as our First Amendment right to Free Speech.

    1. avatar Frank says:

      AS well as the Fourth and Fifth Amendments too. This is why the gun control lobbyists are desperate to enlist so many kids in their Children’s Crusade. Youth attitudes towards all of the Bill of Rights are well studied, documented and understood.

      On the First Amendment youth 12-25 years old, by huge majorities, oppose free speech. Making statements like it is supported — “unless untrue” and “unless” it hurts someones (ie anyone’s) feelings. A majority of youths support the idea of a government censorship board on political speech. On the Fourth and Fifth they “agree” with statements saying “only people with something to hide” need warrant protection.

      As age to mature thinking keeps increasing with perpetual infantilizing of youth and young adult cohorts this failure to appreciate, understand the reason for, treasure and defend Bill of Rights liberties will become a worse problem.

    2. avatar barnbwt says:

      A pretty poor canary, seeing as it’s one of the last to go before we slip over the event-horizon.

      I’d argue that the 4th (which has been damaged for well over 100 years) or the 5th (takings clause, which was mooted by the income tax amendment & federal with-holding) were the actual canaries, which were duly noted & disregarded.

      Hell, the 14th amendment from Reconstruction, though passed with good intentions (and rammed over all opposition by force, without debate), has resulted in enormous damage to the carefully constructed balance of liberties & federal power that originally formed our government, because of its unreachable equality goals.

  9. avatar rosignol says:

    …it took four years to resolve this crap?

    1. avatar Mark N. says:

      It took so long I completely forgot about this case.

  10. avatar Mark N. says:

    I haven’t read the decision, but I wondered–some long time ago when this was in the local gun news before disappearing into the bowels of the federal court system– how Kamala could argue with a straight face that the law somehow prevents “impulsive” buys when the fact of the matter is that California has taken care of that issue with a 10-day wait and a mandatory background check.

  11. avatar TruthTellers says:

    Excellent, now can we get this to extend to open carry? It’s my 1st amendment right that I carry a gun to tell people not to [email protected] with me. Limiting that behind a license or permit is unconstitutional.

  12. avatar Frank says:

    Beyond the obvious First Amendment considerations, one of the other profound dangers of this law was Cali’s AG argument that the law inhibited people with impulsive personality “traits” from buying guns.

    Impulsive traits is not even a clinical diagnosis. it is broad assertion covering 1/2 or more of the population.

    We have gone from adjudicated dangerous, which is both a diagnosis and court finding with due process, to much broader non adjudicated mental health issues, and now even profoundly broader ‘traits’ within the entire population justifying gun control against the whole population.

    Out of any given 100,000 people, 99,000 are going to have traits from susceptibility to depression , to imperfect anger or impulse issues to anxiety, etc.

    It is part of a new tack by gun control advocates: instead of targeting the individual who has been adjudicated criminal or adjudicated seriously and dangerously ill; instead asserting a population health interest in reducing gun access by everyone based on extremely broad brush whole population assertions that have no application to individuals.

    Essentially it is a strategy asserting an jurisdictions interest in *rationing* Bill of Rights liberties, arguing per se benefit in limiting exercise of those rights — a VERY dangerous assertion.

    1. avatar MyName says:

      I agree with your assessments. This is the approach that the control freaks in government have been using for a while now and not just with respect to guns. How many laws, regulations, and standards have been enacted in the last 5 or 6 decades that are essentially predicated on the notion that something needs to be prohibited or regulated or licensed because someone *might* do something that *might* cause some sort of unknown harm, possibly, maybe, if the wind is just right. There are boatloads of local, state and federal ordinances that regulate the things people build, buy and own simply because some group of faceless officials decided that we can’t let the great unwashed masses make their own choices.

      I am often dismayed at how readily large swaths of our populace accept this type of thinking at face value. Rather than expecting people to act reasonably and then dealing with those who do not, we have become a society that implicitly expects people to act unreasonably and attempts to circumscribe all aspects of life so that those *other* people don’t do something *wrong*.

  13. avatar Kenneth G Maiden says:

    Another small small win in Commie Kalifornia. Has the tide turned? I doubt it. The gray suited thugs that dream up such anti freedom crud, are still in office. When the slime newsom is crowned next kalli overlord, an new war will begin. You think Brown was bad, slime bag newsom will make him look like a girl scout. Wake the hell up America!

  14. avatar Docduracoat says:

    When are they going to sue to overturn the one gun purchase per month law?
    How can the state of California justify limiting the number of legal items a person can buy?
    It is legal to amass an arsenal of guns.
    A person has to do it one gun per month.

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