(Reprint from Bearing arms)

A California law ostensibly aimed at restricting the marketing of firearms to minors infringes on the free speech rights of adults, according to a three-judge panel on the Ninth Circuit Court of Appeals. In its ruling handed down on Thursday morning, the panel vacated a lower court decision denying an injunction against the law’s enforcement and delivered a resounding win for both First and Second Amendment advocates.

Judge Kenneth Lee ruled that the law forbidding marketing and advertising firearms that “reasonably appear to be attractive to minors” is likely to infringe on the First Amendment, given that the statute is so broadly written that advertisements aimed at adults who can lawfully purchase a firearm would be swept up in its provisions.
While California has a substantial interest in reducing gun violence and unlawful use of firearms by minors, its law does not “directly” and “materially” further either goal. California cannot straitjacket the First Amendment by, on the one hand, allowing minors to possess and use firearms and then, on the other hand, banning truthful advertisements about that lawful use of firearms. There is no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad. Nor has the state produced any evidence that truthful ads about lawful uses of guns—like an ad about hunting rifles in Junior Sports Magazines’ Junior Shooters—encourage illegal or violent gun use among minors. Simply put, California cannot lean on gossamers of speculation to weave an evidence-free narrative that its law curbing the First Amendment “significantly” decreases unlawful gun use among minors. The First Amendment demands more than good intentions and wishful thinking to warrant the government’s muzzling of speech.

California’s law is also more extensive than necessary, as it sweeps in truthful ads about lawful use of firearms for adults and minors alike. For instance, an advertisement directed at adults featuring a camouflage skin on a firearm might be illegal because minors may be attracted to it.

While the state of California had argued that the statute didn’t violate the First Amendment given the broader latitude given to regulations on commercial speech, the panel was un-swayed, with Lee writing that even under a lowered standard of intermediate scrutiny the law fails to pass constitutional muster in light of the fact that the “state has made no showing that broadly prohibiting certain truthful firearm-related advertising is sufficiently tailored to significantly advance the state’s goals of preventing gun violence and unlawful firearm possession among minors.”

Indeed, the panel noted that the state failed to provide any evidence that a minor has ever illegally purchased a firearm at retail in the state, much less that the problem is so widespread that it would require chilling the speech of gun makers and sellers. At the same time, the law forbids the depiction of lawful gun use on the part of minors, including target shooting and hunting under adult supervision.
In addition, § 22949.80 does not apply only to speech soliciting minors to purchase or use firearms unlawfully. Instead, it applies to any advertisements “offering or promoting any firearm-related product in a manner that is designed, intended, or reasonably appears to be attractive to minors.” Because of this broad wording, § 22949.80 facially encompasses speech directed at adults— who can lawfully purchase firearms—whenever that speech might also reach minors. That alone refutes the state’s argument that the law inherently concerns unlawful activity.

In his conclusion, Lee held that the state has “many tools” at its disposal to address juvenile crime involving guns, but it “cannot ban truthful ads about lawful firearm use among adults and minors unless it can show that such an intrusion into the First Amendment will significantly further the state’s interest in curtailing unlawful and violent use of firearms by minors.” There’s simply no evidence that gun ads, even those extolling the virtues of youth-oriented firearms like a Crickett rifle or a JR-15, are even remotely connected to rates of juvenile crime or are encouraging teens to illegally obtain a gun, but that didn’t stop the anti-gunners in the state legislature and Gov. Gavin Newsom from trying to run roughshod over the First Amendment. Today’s smackdown is a beautiful thing to see, and Lee’s opinion granting an injunction (along with the concurrence from Judge Lawrence VanDyke) is an important step in completely removing the statute from the books. As the Firearms Policy Coalition points out, we may even be witnessing the start of a new day in the Ninth Circuit; historically one of the most hostile courts in the land when it comes to the right to keep and bear arms.