A Constitutional Challenge to a Different Kind of Gun Control Legislation

A lawsuit was filed earlier this week which challenges the constitutionality of Cal. Penal Code § 26820, a California statute aimed at regulating the sale of guns. Tracy Rifle & Pistol LLC v. Harris (E.D. Cal. filed Nov. 10, 2014). The statute provides:

No handgun or imitation handgun, or placard advertising the sale or other transfer thereof, shall be displayed in any part of the premises where it can readily be seen from the outside.

When I read about this statute, I initially assumed reflected a relatively recent effort by our friends in Sacramento to be ahead of crowd in further regulating the sale of guns. To my surprise, the statute was enacted in 1923. Perhaps the staff attorneys assisting the California Legislature in 1923 were not aware of the First Amendment constraints on a state prohibiting businesses from advertising products and services that are lawful. But the Attorney General and other prosecutors who are enforcing the statute certainly must understand that this statute cannot withstand constitutional scrutiny.   Irrespective of the opinions one might have on the issue of the sale of guns and the Second Amendment right to bear arms, there is a serious First Amendment problem with this statute.

The Introduction section of the Complaint provides a good summary of the argument.

1. Plaintiffs bring this suit to challenge the constitutionality of California Penal Code section 26820, which prohibits firearms dealers from displaying handgun advertisements that are visible from the outside of their place of business.
2. The sale of handguns is not only legal—it is constitutionally protected by the Second Amendment. The First Amendment protects truthful, non-misleading commercial speech promoting lawful products or services, but especially when the products or services are themselves protected by other constitutional rights. Even if California believes that buying a handgun is a bad decision, “the ‘fear that people would make bad decisions if given truthful information’ cannot justify content-based burdens on speech.” Sorrell v. IMS Health Inc., 564 U.S. ___, 131 S. Ct. 2653, 2670-71 (2011) (citation omitted). “The choice ‘between the dangers of suppressing information, and the dangers of its misuse if it is freely available’ is one that ‘the First Amendment makes for us.’” Id. at 2671 (quoting Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976)). And, “[i]f the First Amendment means anything, it means that regulating speech must be a last—not first—resort.” Thompson v. W. States Med. Ctr., 535 U.S. 357, 373 (2002).
3. 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. So long as responsible, law-abiding adults may purchase handguns in California—a right secured by the Second Amendment—the First Amendment prevents the State from enforcing Section 26820’s ban on on-site handgun advertising.
4. Because Section 26820 violates the First Amendment, Plaintiffs seek declaratory and injunctive relief to invalidate the statute and enjoin its enforcement by the California Department of Justice.

Professor Eugene Volokh, who is part of the team bringing this lawsuit, writes about the lawsuit here. This will be an interesting case to watch and I eagerly await California’s presentation of a constitutional defense of this statute.