LOS ANGELES (CN) — The Ninth Circuit Court of Appeals on Wednesday heard oral arguments in two cases stemming from California's ban on on the sale of firearms and ammunition at gun shows on state-owned property, including at county fairgrounds.
The underlying law, SB 915, was by authored by Democratic state Senator Dave Min. It took effect on Jan. 1, 2023.
In March, a U.S. district judge in San Diego dismissed a lawsuit brought by B+L Productions challenging the law. B+L operates "Crossroads of the West" gun shows all across the country, including one at the Del Mar Fairgrounds near San Diego.
Then — in a different case brought by the same plaintiffs later that year — a federal judge in Orange County agreed to issue a preliminary injunction, blocking California from enforcing its gun-show sales ban.
Min condemned the ruling, calling it "the very essence of federal overreach that conservatives have so long decried."
Gun shows are bazaars where people sell firearms to others. The sellers at such shows are often just private individuals, though established businesses with brick-and-mortar stores can also have stands.
Because many gun regulations, such as background checks, include a "private sale exemption," gun shows are seen by many as an unregulated marketplace. Democratic politicians have fought to close the so-called "gun show loophole" for decades.
That said, many states including California require background checks even at gun shows.
Even before the passage of SB 915, California had especially strict regulations on gun shows — allowing sales to be initiated but not completed.
Buyers at such shows can pay for guns, but they have to pick up their weapon from a licensed retailer at a different location after a 10-day waiting period and a successful background check. SB 915 took those regulations a step further, banning the initiation of sales. Gun show operators said that that amounted to a de facto gun show ban.
B+L Productions challenged the law under the First and Second Amendment, arguing that a ban on sales was a ban on what it called "commercial speech."
Representing the state of California, Deputy District Attorney Charles Sarosy made a curious argument. He said SB 915 didn't ban sales offers but only banned actual sales.
In other words, gun sellers are free to set up stands at gun shows and offer to sell guns at different locations — but no credit cards could be swiped. Gun shows could still occur, he said, so long as there were no sales of guns or ammunition.
"This is about sales, not about speech," Sarosy told the three-judge panel.
B+L Productions' lawyer, Anna Barvir, argued that the gun show sales ban was in fact a ban on gun shows. That was the law's intent, that was what lawmakers described it as, and that's what its end result was, she reasoned.
"Gun shows allow gun sales," she said. "Guns shows without the sale of guns are not a thing. That is not the business model of my client. Gun shows allow commerce in arms."
The three judges were fairly skeptical of Barvir's arguments.
"Making an offer, that’s commercial speech," said Judge Richard Clifton, a George W. Bush appointee. "Accepting an offer, I don't know. I haven’t heard commercial speech discussed in those terms."
Clifton asked Barvir if she could point to any case law that supported her view.
"No, I cannot," she replied.
As for her Second Amendment argument, that too was met with resistance by Clifton — the only judge on the panel to have been appointed by a Republican president.
Clifton said he failed to see how the law was a violation of the right to keep and bear arms "if in fact the arms are readily available, and a citizen can get them by crossing the street."
"You can’t keep and bear arms if you can’t get them," Barvir said.
"But you haven’t made the case that you can’t get them," Clifton replied.
The panel was rounded out by judges Holly Thomas and Roopali Desai, both of them Joe Biden appointees. The panel took the two appeals under submission.
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