For almost 100 years, giant neon signs reading “GUNS GUNS GUNS” were perfectly legal for California firearm retailers, but “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.” That was until this week, when a federal judge ruled the handgun ad ban is an unconstitutional restriction on commercial free speech rights.
So, what led to the ruling and what’s next for gun dealers in the Golden State?
Protected Expressions and Substantial Interests
Commercial speech from businesses isn’t afforded quite the same protections under the First Amendment as, say, political speech by persons. And the government can regulate and restrict commercial speech in certain instances. As the U.S. District Court in this case noted, there is a four-part test to determine whether restrictions on commercial speech pass are constitutional:
- Whether the expression concerns lawful activity and is not misleading;
- Whether the asserted governmental interest is substantial;
- Whether the regulation directly advances the governmental interest asserted; and
- Whether it is not more extensive than is necessary to serve that interest.
Both sides in this case conceded the answer to the first two questions was yes: Buying guns is legal, therefore advertising gun sales is lawful, and images of handguns are not misleading; and the State of California had a substantial government interest in reducing gun violence and gun suicide.
Advancing Interests and Speech Restrictions
The court, however, was pretty skeptical when it came to California’s claims that the ban on handguns in ads advanced those interests. “The government may not restrict speech,” Judge Troy Nunley wrote, “that persuades adults, who are neither criminals nor suffer from mental illness, from purchasing a legal and constitutionally-protected product, merely because it distrusts their personality trait and the decisions that personality trait may lead them to make later down the road.”
The court was especially unconvinced by California’s expert witnesses, who failed to demonstrate that “impulsive handgun purchases result in impulsive handgun suicides,” and that bans on handgun images would be any more effective than other firearm safeguards, like the state’s 10-day waiting period. Therefore the “highly paternalistic” gloves are off when it comes to advertising handguns, for licensed firearm dealers at least. Time to update those billboards and window displays.
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