Review Journal: A Right to Advertise

Imagine you own a shop that sells various gadgets. The gadgets are perfectly legal, so you not only sell them, you also advertise them at your shop — on the windows and doors or on outside walls — to help attract potential customers.
But imagine the state told you it was illegal for you to promote your perfectly legal product on the shop’s premises in any way that could be visible to passers-by.
Now, stop imagining — because that’s exactly what the state of California mandates regarding handguns at gun stores.
A California law enacted in 1923 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.” Now a group of California gun-shop owners has gone to court to challenge the law on First Amendment grounds.
The introduction to the plaintiffs’ motion for a preliminary injunction reads: “The sale of handguns is not only legal — it is constitutionally protected. The First Amendment protects truthful, nonmisleading commercial speech promoting lawful products or services, but especially when the products or services are themselves protected by other constitutional rights. … What is true for unenumerated constitutional rights must be at least as true for the enumerated right to bear arms, which includes the right to possess and acquire handguns.”
UCLA law professor Eugene Volokh, who serves as a consultant for the gun-shop owners in this case, pointed out that a federal District Court judge last July agreed that the law likely violates the First Amendment. Inexplicably, he still refused to issue an injunction against the law’s enforcement. Then, in February, a panel of the 9th U.S. Circuit Court Appeals also refused to set aside the law while the matter is adjudicated, finding that the ban helped stop impulse buys of handguns.
This is preposterous, particularly given that the District Court decision noted impulse buying was unlikely due to the state’s 10-day wait period and that the plaintiffs were likely to prevail on the merits of their free speech claim. Further, gun stores are allowed to advertise other firearms such as hunting rifles — just not handguns.
The case is set to go to trial next February before the federal District Court judge. As Mr. Volokh told The Wall Street Journal’s Adam O’Neal last month, “There’s pretty solid First Amendment case law protecting the right to advertise in this context. And that’s both from the U.S. Supreme Court and the Ninth Circuit.” That should make the District Court’s decision at trial a slam dunk: Obliterating the First Amendment to circumvent the Second Amendment is unconstitutional.

Read more here.
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