Ninth Circuit DENIES California AG's Request for En Banc Hearing in Gun Law Challenge

For years now, legal challenges to California's gun control laws have followed the same basic pattern: a district court judge or a three-judge panel on the Ninth Circuit Court of Appeals finds the law in question likely violates the Constitution and grants an injunction, only to have their decision overturned by an en banc panel of Ninth Circuit judges, allowing the law to be enforced while litigation continues. 


It's big news when the Ninth Circuit doesn't follow that script, and that's why California Rifle & Pistol Association head and 2A attorney Chuck Michel is celebrating a win in a lawsuit that takes on a statute meant to eradicate youth shooting sports and future generations' support for the Second Amendment. 

Given the stakes for the future of youth shooting sports in the state, this is a striking and positive development. When California Attorney General Rob Bonta requested an en banc hearing, he alleged that the injunction "jeopardizes California’s ability to protect its residents, especially minors, from the scourge of gun violence. More generally, it risks undercutting the ability of the government to effectively regulate the advertising and marketing of inherently dangerous products to children." 

As the plaintiffs had successfully argued before the three-judge panel that granted the injunction, the state had presented no evidence that the "scourge of gun violence" is "somehow inspired by an advertisement published by firearm industry members" or that there was any advertising or marketing of firearms to children taking place to begin with. Kids, after all, aren't old enough to legally purchase firearms, so why would the industry spend a penny marketing guns to an audience who can't buy their products? 


What the state is really trying to do with AB 2571 is to curtail the youth shooting sports in general. Guns that are designed for youth shooters, like the single-shot .22LR Crickett rifle I used to teach my kids about basic gun handling and safety, fall under AB 2571's restrictions, and marketing them in any way could lead to tens of thousands of dollars in fines for the gun companies and stores that make them available for sale. As Michel argued in opposition to an en banc review: 

... the petition really goes off the rails when the State admits that AB 2571’sreal purpose is to suppress demand in the marketplace for a product it admits is legalfor minors to use. This suppression of demand is to be accomplished by the suppression of the viewpoint that minors should be knowledgeable about the products designed for their lawful use in shooting sports. Furthermore, California wants to suppress truthful information about products intended to be used in a lawful activity—but only if that information is published by “firearm industry members.” That would be like permitting minors to make their own decisions about reproductive health but forbidding them to haveinformation about how to use such products, the brands available, or the side effectsof such products.

Michel also noted that California's attempt to prohibit gun-related marketing in a way that minors might find appealing (even if it wasn't targeted directly to them) is aimed at a constitutionally protected right, which makes it a flagrant abuse of state powers.  guarantees. 


None of the cases the State relies on for the proposition that squelching demand is a legitimate government purpose involve government action to undermine demand for the future exercise of a core civil right. The State’s authorities run the gamut of laws discouraging prostitution, tobacco use, alcohol use, and houseware sale parties. But not one of these activities falls under the protection of the Bill of Rights or the Fourteenth Amendment’s personal liberty.

California’s own viewpoint is transparent. It wants to kill the demand of adults to exercise their Second Amendment rights in the future by discouraging minors from enjoying the shooting sports now. No court would tolerate a law designed to discourage or dampen future demand of products that would help someone exercise their right to vote, sit on a jury, or hold public office—even if the demand were stimulated before their eligibility to exercise those rights. The Supreme Court has included the right to bear arms as a “civil right” and equates it with theright to vote.

The State concedes that it has produced no evidence that it is experiencing a “scourge” of illegal gun sales to minors or that marketing to any demographic by any “firearm industry member” leads to violence committed by minors illegally buying firearms. The petition argues instead that California may rely on consensus, inferential reasoning, and common sense as a substitute for evidence to carry their burden under the intermediate scrutiny test found in Central Hudson. The State essentially asks to be relieved of any level of judicial scrutiny the First Amendment commands—even for commercial speech. It is not the panel opinion that conflicts with the precedents of the Supreme Court or this circuit. It is the State’s desire to censor lawful, truthful speech by and to adults (just because it might be attractive to minors) that conflicts with those authorities.


I suppose Bonta could take his appeal to the Supreme Court if he wanted to, but I don't think he's going to find any relief there either, which means that California's speech-limiting law is going to remain on hold while the case proceeds to trial on the merits. This is extraordinarily good news, and may even be a sign that the Ninth Circuit's knee-jerk support for every gun control law that comes before it can no longer be taken for granted by anti-gunners like Bonta and Gavin Newsom. 

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