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Tuesday, June 25, 2024 | Back issues
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Ninth Circuit rules against California ban on gun ads aimed at minors

The panel remanded for a preliminary injunction, with one judge saying the law was clearly written to eliminate a particular viewpoint.

LOS ANGELES (CN) — The Ninth Circuit Court of Appeals ruled Wednesday there is no evidence that a California ban on firearm advertisements aimed at minors would achieve its purported goal of reducing illegal gun use and violence among young people.

A three-judge panel of the federal appellate court on Wednesday overruled a lower court judge who last year had declined to issue a preliminary injunction against enforcement of the statute in a lawsuit brought by Junior Sports Magazine and Second Amendment advocates.

Since California allows youngsters to use firearms under adult supervision, such as for hunting and target practice, the case was about whether the state can ban a truthful advertisement about firearms used legally by adults and minors only because the ad “reasonably appears to be attractive to minors,” U.S. Circuit Judge Kenneth Lee, a Donald Trump appointee, wrote.

But the First Amendment only allows states to ban truthful and lawful advertising if it materially and directly advances a substantial government interest, such as reducing gun violence, and is no more extensive than necessary, according to Lee. The California law fails in this regard, the panel ruled, because the state hasn't provided any evidence how a ban against, for example, ads for hunting riffles in the magazine Junior Shooter, would reduce gun violence.

"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," Lee wrote for the panel. "The First Amendment demands more than good intentions and wishful thinking to warrant the government's muzzling of speech."

In addition, Lee said the California law was too broad because it would also ban firearm ads aimed at adults just because they might be appealing to children as well.

A spokesperson for California Attorney General Rob Bonta, who is defending the state in the litigation, didn't immediately respond to a request for comment on the decision.

“Although this does not end the case, this is the outcome we were hoping for,” Chuck Michel, president and general counsel of the California Rifle & Pistol Association said. “Newsom’s efforts to eliminate youth shooting activities, hunting, and the next generation of Second Amendment advocates who understand their rights has been stopped again. This is another example of legislative overreach and the politicians' willingness to trample on constitutional rights.”

The Ninth Circuit panel's concern about the statute was already evident at a hearing in June, where U.S. Circuit Judge Lawrence VanDyke, also a Trump appointee, observed that “it doesn’t pass the straight-face test.”

The California law, Assembly Bill 2571, was passed in 2022 among a raft of gun legislation prompted in part by the increase of gun violence, including school shootings, among children both in California and nationwide. Gun violence is now the third leading cause of death for children and teens in California, according to the state, and firearm-related injuries has surpassed car crashes as the leading cause of death among children and adolescents nationwide.

The publisher of Junior Shooters magazine, the California Rifle & Pistol Association and several youth sport shooting organizations filed a lawsuit in Los Angeles federal court claiming AB 2571 unfairly targets pro-Second Amendment organizations by barring any kind of industry advertising designed to make firearms appealing to minors.

A separate case was filed in federal court in Sacramento, where youth sports and pro-hunting groups argued that the law violated gun manufacturers’ freedom of speech. This past January, U.S. District Judge Dale Drozd denied their bid to block the law and found states had the right to regulate commercial speech.

Anna Barvir, an attorney for Junior Sports Magazines, argued at the June hearing that the California law was “hopelessly over-inclusive” and vague and that it was driven by animosity toward people who exercise their constitutional right to own firearms.

“AB 2571 was never really about preventing the unlawful sale of firearms to minors,” Barvir said. “The legislative history is chock-full of references to the primary impetus for the law — that is, animus for gun culture and firearm industry members specifically.”

Van Dyke, while concurring with the other judges that the California law should be enjoined, wrote separately to stress that in his opinion the Ninth Circuit should use so-called strict scrutiny to evaluate the constitutionality of statutes, such as the one in this case, which he said aim to eliminate a particular viewpoint from public discourse.

"When the text is peeled back, the legislative record indicates an intention that the law will stop the message that minors should lawfully use firearms, and a hope that the law will prevent minors from eventually becoming adults who have a favorable view of gun ownership and use," Van Dyke said.

The First Amendment almost universally “forbids” laws that restrict speech on the basis of viewpoint, he said.

Senior U.S. Circuit Judge N. Randy Smith, a George W. Bush appointee, rounded out the panel.

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Categories / Appeals, Government, Regional

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