Gun Sellers Sue California Over Ban on Handgun Displays

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Nov 12, 2014

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Four firearms distributors in California have filed a lawsuit against a state law that prevents gun sellers from displaying pictures of handguns in posters or advertisements in view of the public.  Alleging that the law, in place since 1923, violates the weapons dealers’ First Amendment right to commercial speech, the four businesses have taken California to federal court in an effort to have the decades-old legislation overturned.

California Law Prohibits Pictures of Handguns in Display

The dispute started after Tracy Rifle and Pistol, lead plaintiff in the lawsuit, was issued a citation by the bureau of firearms in California for displaying large vinyl decals with images of three handguns in violation of a 1923 law that reads:

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.

Although the sale of handguns is protected under the Second Amendment California’s law prohibits business from displaying the products, even if the purpose is to advertise legal firearm distribution.  Pennsylvania, Texas, and Washington D.C. have on the books similarly old laws that ban images of handguns in areas visible from the outside, but only California continues to enforce its version of the legislation.

Michael Baryla, owner of Tracy Rifle, took issue with the law, saying, “I run one of the most heavily regulated and inspected businesses in existence, but it’s still illegal for me to show customers that I sell handguns until after they walk in the door. That’s about as silly a law as you could imagine, even here in California.”  Joined by three other businesses which have either faced fines under the ordinance or are concerned that regulation will have a negative effect on their business, Baryla elevated his critique of the legislation to a constitutional challenge filed in federal court earlier this week.

Gun Dealers Sue California Handgun Display Law Citing First Amendment

At the heart of California’s law is the desire to prohibit the display of goods that may encourage dangerous or self-destructive behavior among the public, but, although censorship of imagery associated with legal products can be regulated in certain circumstances, serious questions arise in the case of handguns because the distribution of firearms is specifically protected by the Second Amendment.  Citing both the 1st and 2nd Amendments, the four plaintiffs argue in the complaint, “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 right.” 

After establishing that the First Amendment protects commercial speech advertising the sale of lawful and constituionally protected products, the plaintiffs then argue that the California law violates principles of Free Speech by targeting handguns: “[T]he restriction is content-based. The law applies only to handguns, and does not apply to other firearms such as rifles or shotguns, and no separate California law imposes a similar restriction on advertising the sale of rifles or shotguns. 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.” … The Supreme Court has “rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information.”

Citing the Supreme Court’s position on similar attempts to prohibit the display of lawful products, the complaint goes on to point out that California has exceeded its constitutional authority by forbidding gun retailers to advertise the sale of handguns.

California Law Unconstitutionally Prohibits Legal Marketing

The complaint, found here, concludes by arguing that simply because handgun sales may be disfavored by California’s legislature, state officials cannot enforce a law that disallows businesses to display pictures of them.  The Supreme Court has consistently denied governments the authority to prohibit “truthful, non-misleading, and material advertising” of lawful products, and the plaintiffs believe that the established protections afforded other goods are similarly applicable to handgun sales, California’s view on them notwithstanding.

California officials have not responded to the complaint or requests for comment from news outlets covering the story.  The case was filed this week a California federal court, and will likely play out publically over the coming months as the parties present legal arguments prior to trial.

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