Judge rules handgun advertisement ban is unconstitutional

A federal judge has nullified a nearly century-old California prohibition on firearms dealers displaying handgun advertisements visible from outside their shops.

U.S. District Judge Troy Nunley of Sacramento ruled earlier this week that California Penal Code 26820, a law enacted in 1923, is unconstitutional, rejecting arguments by the state that the law advances its interest in decreasing handgun suicides because the law inhibits handgun purchases by people with impulsive personality traits, who are "at a higher risk for suicide" and "more likely to engage in crime," according to court documents.

"The Government may not restrict speech 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," Nunley wrote in his Tuesday ruling.

Nunley based his decision on the Central Hudson test, a four-part test determining when restrictions on commercial speech violate the First Amendment, according to the ruling. Tracy Rifle and Pistol LLC v. Harris, 14-CV02626 (E.D. Cal., filed Nov 10, 2014).

The Department of Justice inspected California-based gun dealerships owned by the plaintiffs in 2010 and in 2014, informing them their signage violated the handgun advertising restriction, according to the complaint.

At the gun dealership Ten Percent, the DOJ discovered a metal sign shaped like a revolver in its parking lot and at Tracy Rifle, exterior windows covered with vinyl decals depicting firearms, court documents said.

However, attorneys for the state attorney general's office failed to make the link that impulsive handgun purchases result in impulsive handgun suicides with their expert testimony, Nunley wrote, and has "an array of policies at its disposal to combat handgun suicide and crime."

"California may not accomplish its goals by violating the First Amendment," the judge added.

"We commend the Court for embracing what the Supreme Court has been emphasizing recently about the First Amendment," said Bradley Benbrook, founding partner of Benbrook Law Group who represented the plaintiffs. "It is there to protect citizens from the paternalistic impulse of the government to restrict speech about behavior the government doesn't support."

Officials at Attorney General Xavier Becerra's office said they are reviewing the decision.

Nunley's ruling didn't surprise Lincoln Bandlow, a First Amendment attorney and partner at Fox Rothschild LLP not involved in the matter.

"Efforts to try to control conduct by banning speech that relates to the conduct are virtually certain to fail First Amendment scrutiny," Bandlow said.