CA gun dealers challenge handgun ad ban

by John | November 13, 2014 2:22 pm

Second Amendment advocates say California is infringing on their First Amendment rights.

On Monday, four California gun dealers filed a federal lawsuit challenging a nearly century-old law that bans the display of handguns in store advertisements.

Under state law, it’s perfectly legal for a gun-control[1] supporter to use images of handguns in a protest outside of a gun store. But if a gun store were to put the same sign in its store window, it would be a violation of state law.

States California Civil Code § 26820[2], which was first enacted in 1923:

“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.”

This isn’t a case of hypothetical free speech scenarios. Earlier this year, a Central Valley gun dealer was cited by the California Department of Justice for breaking the law by displaying a handgun in its window. Tracy Rifle and Pistol, the San Joaquin County firearm retailer that was cited by the Department of Justice in September, points out the obvious content-based speech restriction.

“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,” said Michael Baryla[3], the owner of Tracy Rifle and Pistol. “That’s about as silly a law as you could imagine, even here in California.”

Gun stores speak out

One Fresno gun dealer and plaintiff in the case, PRK Arms, told KMPH Fox 26 News’ Erika Cervantes[4] that the lack of proper signage can be confusing for customers.

“We actually get quite a few calls throughout the week from people asking if we sell handguns,” Elijah Smedley, the store’s general manager, told KMPH[5]. “If you look around, there’s plenty of them here. The product itself is not illegal in any way, so why should advertising be illegal?”

Smedley pointed out the obvious double standard.

“You can advertise for just about anything else that you sell,” he said. “There’s grow shops, there’s dirty magazine stores, there’s all kinds of things out there that you can advertise for the exact item you’re selling. Yet, for some reason, handguns are taboo.”

First Amendment scholars join case

Eugene Volokh, a UCLA law professor who is considered one of the country’s foremost experts on the First Amendment, has joined the case on behalf of the plaintiffs.

“The government generally may not ban advertising of lawful products — indeed, of constitutionally protected products — on the grounds that such advertising is offensive, or stimulates consumer interest in such products,” Volokh explained on his legal blog at the Washington Post[6].

In addition to a double standard for gun owners and gun control advocates, there’s a double standard for weapons. In California, it’s legal for gun dealers to display images of shotguns and rifles on their premises, but illegal to display an image of a handgun. The multiple content-based restriction has helped the gun dealers enlist other constitutional experts in the case, including top-notch attorneys Bradley Benbrook and Stephen Duvernay.

“The First Amendment prevents the government from telling businesses it disfavors that they can’t engage in truthful advertising,” said Bradley Benbrook[7], lead counsel for the plaintiffs. “This case follows a long line of Supreme Court cases protecting such disfavored businesses from that type of censorship.”

A spokesman for Attorney General Kamala Harris, the lead defendant in the case, declined to comment about it to CalWatchdog.com.

State’s clever gun rights advocates target vulnerable laws

The lawsuit is only the latest effort in a series of savvy moves by the state’s leading Second Amendment[8] advocates. Unable to slow the endless series of new gun-control bills proposed each legislative session[9], the California Association of Federal Firearm Licensees[10], Calguns Foundation and the Second Amendment Foundation have turned to lawsuits and public-records request to overturn laws. And when the mainstream media ignore their achievements, CA-FFL shares its victories directly with its nearly 40,000 Facebook fans[11].

In August, a federal judge ruled that California’s 10-day waiting period[12] on gun sales violated the Second Amendment rights of certain groups of gun owners. The plaintiffs in the case were represented by Calguns Foundation and Second Amendment Foundation.

The group has also exploited the state’s public records law to obtain information about the uneven administration[13] of conceal-carry permits. In 2011, Calguns Foundation believed then-San Francisco Sheriff Michael Hennessey was failing to comply with California’s conceal-carry laws. Under state law, all agencies that have the authority to issue firearm permits must create and publish a written policy on the process. Thanks to a public records request, the group proved that the sheriff had selectively enforced the law and awarded permits to politically-connected applicants.

San Francisco wasn’t an isolated case, but a part of Calguns’ program to enforce compliance with the law. A similar 2010 request filed by Calguns with the Ventura County sheriff’s office was denied. Calguns was forced to file a lawsuit, which it won.

Whenever it can, California’s gun-rights advocates are looking to form broad-based political coalitions.

“Since we started our Carry License Initiative, Calguns Foundation has had the great pleasure of supporting and, where possible, collaborating with fantastic open government groups like the First Amendment Coalition and CalAware on matters relating to public records and meetings,” said Brandon Combs, one of the masterminds behind the effective political strategy.

A copy of the complaint can be viewed here[14].

Source URL: https://calwatchdog.com/2014/11/13/ca-gun-dealers-challenge-handgun-ad-ban/

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