Gun Dealers File for Summary Judgment in First Amendment Lawsuit Over State of California Ban on Handgun Advertisements
Posted on December 5, 2016
The case, backed by The Calguns Foundation, Second Amendment Foundation, and California Association of Federal Firearms Licensees, challenges a State of California law that bans handgun advertising outside of licensed firearm dealerships.
SACRAMENTO (December 5, 2016) – Today, attorneys for 5 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 at www.calgunsfoundation.org/litigation/trap-v-harris.
The lawsuit is being supported by Second Amendment civil rights groups The Calguns Foundation (CGF) and Second Amendment Foundation (SAF) as well as firearm industry association California Association of Federal Firearms Licensees (CAL-FFL).
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 most tenacious 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.