According to a recent legal review, in an effort to control the sale of handguns in the state by gun dealers, California has argued that a provision of California Penal Code section 26820 enacted in 1923 prevents the displaying of any “handgun or imitation handgun, or placard advertising the sale or transfer thereof” anywhere in or on their store that can be seen outside their store by passersby.
The State’s rationale for imposing the ban, which only applies to advertising “handguns” and not rifles or shotguns, is that it desires to curb “impulse buys” that lead to more crime, despite there being a 10 day waiting period in California to complete the sale and delivery of a handgun. What makes the State’s position even more questionable is that the stores can continue to advertise using the words “GUNS” and “FIREARMS,” just not “HANDGUNS.”
This law is being challenged as unconstitutional in Federal Court by gun dealers in the case of Tracy Rifle and Pistol, LLC, et al. v. Attorney General Kamala Harris, et al. (Cause No. 2:14-cv-02626-TLN-DAD, United States District Court for the Eastern District of California) urging the ban violates their First Amendment right of free speech.
They are asking the Court to declare the State’s interpretation of the law unconstitutional and for the granting of a preliminary injunction prohibiting the State from continuing the ban until the case can be fully heard and decided.
District Court Judge Troy Nunley stated that the State failed to meets its burden of proof that the ban achieved under 26820 is “narrowly tailored to achieve the desired objective” of managing crime and handgun violence. The Court further finds that it is more likely than not that the Plaintiffs will succeed on the merits of their First Amendment Claim. However . . . . .
One of the elements necessary for a court to issue a preliminary injunction is that the party seeking the injunction will suffer irreparable injury. Monetary damages are not considered irreparable harm because money can be awarded as part of a judgment. The Court pointed out that the ban does not prevent the Plaintiffs from advertising their handguns online, in magazines, print, or other media – just not in their store where a passerby might see it, and can continue to advertise “GUNS” and “FIREARMS.” The Court found that the Plaintiffs failed to establish any irreparable harm “other than” to their First Amendment rights. And finally, the Court reasoned granting the injunction would alter the status quo and force the State to alter is regulatory scheme and practices with regards to firearms.
Therefore, the Court took a “cautionary approach that favors denial greater serves the public interest than granting the injunction” and therefore denied the Plaintiff’s motion for a preliminary injunction prohibiting the State’s ban on handgun advertisement that can be seen by passersby.
For the complete Order by the Court, go to: