SAN FRANCISCO (CN) - Whether California may continue banning advertisements depicting handguns ultimately comes down to free speech versus public safety, attorneys told a Ninth Circuit panel on Tuesday.
Representing Tracy Rifle and Pistol, attorney Eugene Volokh says California's ban on signs depicting handguns is based on lawmakers' "highly speculative" inference that the signs will trigger an impulse purchase and subsequent violent acts by some people.
"This is a classic example of a case where the government bans advertising because it is afraid it is going to be too persuasive to adults," Volokh said. "It is afraid that people will see the ad and buy guns for what the government thinks are improper reasons or without adequate deliberation."
He said all requirements are met for the court to bar the state from enforcing its ban on signs depicting handguns.
Volokh argued the state's ban violates the Constitution because the First Amendment does not allow the government to silence truthful speech simply because it fears adults will be too persuaded by it, and there is no sufficient evidence that the ban directly advances any government interest.
He said the state's denial of free speech rights irreparably harms Tracy Rifle and other California gun stores, and the district court made a mistake by finding that overturning the statute would cause public safety harm, particularly given the state's 10-day waiting period to buy handguns.
"That kind of speculation just is not adequate for overcoming that fact that the balance of hardships would regularly tilt in favor of preserving constitutional rights," Volokh argued.
For the state to deny free speech, Volokh said it must demonstrate a greater harm would occur if it did not act.
Circuit Judge Mary M. Schroeder said the state showed evidence of harm caused by people buying guns, but Volokh said the state only provided evidence of general harms arising from people buying guns, which had nothing to do with advertising or real evidence of impulse purchases.
"We don't think there's that much of a common-sense argument that somebody is a particularly dangerous person just because they are moved by a sign for a handgun," Volokh said.
"We all know how we react to seeing items displayed in stores and pictures of items that might be for sale," Schroeder countered.
"It is common sense that somebody who sees an ad might want to buy that product," Volokh said. "We don't think that there's enough of a common-sense argument, any more than speculation, that someone who sees the ad is going to be a particularly dangerous buyer of that product."
He said the state needs to provide evidence specifically showing that signs depicting handguns cause harm in order for its ban on them to be constitutional.
Arguing on behalf of the state of California, attorney Nelson Richards said the statute has been on the books for more than 90 years and very narrowly limits a category of commercial speech that leaves many other alternative forms of advertising.
Richards said the state provided general evidence of handgun violence in the nation and in the state, including that half of all homicides in California are committed with a handgun.
Schroeder said that while there is ample evidence showing more handguns lead to more violence, the district court asked whether the advertising ban limits impulse buys and in turn leads to less handgun crime and violence and not, in general terms, whether fewer handguns means less violence.
Richards said two studies submitted by the state as evidence deal directly with handgun violence and handgun purchases in California, and it is a common-sense inference for state lawmakers to conclude advertising signs that depict handguns result in more handgun deaths in California - particularly suicides.
"It is reasonable for the government to infer that, if purchases of handguns are associated with these increased risks, particularly the increased risk of suicide, then an impulse purchase of a handgun prompted by a point-of-sale advertisement on the exterior of a building [is] more likely to result in these types of negative outcomes," Richards argued.
Circuit Judge Sydney R. Thomas asked why the state's 10-day waiting period does not cover that issue. Richards said the risk runs beyond the 10-day waiting period, and that two studies conducted in California affirm that.
"So, it's not the impulsive purchase; it's the purchase of the firearm," Schroeder commented.
The California Legislature singled out impulsive purchases as being particularly bad and more likely to result in violence, Richards said, adding that the Supreme Court ruled states can use such "common-sense" inferences to come up with solutions to difficult problems.
"Truthful advertising in the store is protected by the First Amendment, even in the face of some governmental concerns," Thomas said.
Richards said the state isn't trying to stop stores from selling handguns; it's trying to address a particular problem of handgun violence by targeting impulse buys.
Schroeder asked if the state has any data showing impulsive buys lead to greater violence. Richards acknowledged there is no specific evidence but said it is reasonable to infer, based on evidence provided by general handgun violence studies in California.
On rebuttal, Volokh said the state's rationale for the handgun sign ban stems from a belief that impulsive decisions are particularly bad and that people will make bad decisions, but he said that's the kind of rationale the Ninth Circuit and Supreme Court have said is inadequate for restricting commercial speech.
U.S. District Judge Troy L. Nunley denied Tracy Rifle's motion to bar the state against enforcing its ban on signs depicting handguns this past July.
Nunley said the state's sign ban provides a greater public service than barring its enforcement would provide.
Thomas, Schroeder and Circuit Judge Jacquelin Nguyen presided over the hearing.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.