Calif. Handgun Advertising Ban Challenged on 1st Amendment Grounds

By William Peacock, Esq. on November 11, 2014 | Last updated on March 21, 2019

California Penal Code Section 26820 states:

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.

Like guns? Hate guns? It doesn't matter, really. This is a law that seems to curtail commercial speech for no discernable reason whatsoever. Store owners can't put up signs advertising the sale of handguns, but they can advertise sales of shotguns and even "assault" rifles. And any non-dealers (think protesters) are free to post their own handgun-related signs.

It's a law that, to be fair, was passed in the 1920s. And yet, California is still trying enforce it.

Gun Dealer Gets Cited

It all started at Tracy Rifle and Pistol in San Joaquin County. On the store's windows are large vinyl window coverings showing some of the wares for sale: AR-15 rifles, pistols, and more. The AR-15 "assault" rifle, long a target of state regulators, isn't the issue -- it's the handguns.

Recently, the California Department of Justice stopped by Tracy Rifle and Pistol and cited store owner Michael Baryla for the advertisements. The lawsuit, Trap v. Harris, followed, according to a statement by the plaintiffs and their supporters.

"I run one of the most heavily regulated and inspected businesses in existence, but it's still illegal for me to show customers that I sell handguns until after they walk in the door," Baryla said in the statement. "That's about as silly a law as you could imagine, even here in California."

You can see more in this report from Sacramento's KCRA-TV:

First Amendment Advocates Get Excited

The complaint argues that the regulation curtails constitutionally protected First Amendment commercial speech.

"The First Amendment prevents the government from telling businesses it disfavors that they can't engage in truthful advertising," lead counsel Bradley Benbrook said in the statement. "This case follows a long line of Supreme Court cases protecting such disfavored businesses from that type of censorship."

A-Team Counsel

For a First Amendment claim, there is a short list of "holy crap, we can only dream of having this guy represent us" lawyers. UCLA Law Prof. Eugene Volokh (also the guy behind The Volokh Conspiracy blog over at The Washington Post), is co-counsel for the firearms dealers, joining Benbrook and his colleague Stephen Duvernay.

As for the state, the Attorney General's office did not return KCRA's calls seeking comment.

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