Donald Kilmer is a Professor of Constitutional Law at Lincoln University Law School, where his courses include Second Amendment and Firearms Law. He is co-author of the third edition of the textbook Firearms Law and the Second Amendment. He was Counsel of Record for the Second Amendment Foundation in the case discussed herein.

In 2022 California passed – as emergency legislation – an amendment to Business and Professions Code § 22949.80. The new law is (was) a continuation of that state’s prosecution of a culture war against the Second Amendment and those who enjoy the shooting sports and its inter-generational legacy. California sought to squelch demand for firearms and related products by punishing speech directed at minors that promotes shooting sports products. The new law would have punished ads like this one with civil penalties of $25,000 per occurrence.

Plaintiffs, including Junior Sports Magazine, and various civil rights organizations – including the Second Amendment Foundation (my client) unsuccessfully sought an injunction in federal court in Central California. The matter was appealed to the Ninth Circuit Court of Appeals.  That court reversed the trial court’s denial of a preliminary injunction on First and Fourteenth Amendment grounds.

The California law prohibited the advertising of any “firearm-related product in a manner that is designed, intended, or reasonably appears to be attractive to minors.”

The panel assumed that California’s law regulates only commercial speech and that intermediate scrutiny applies. Applying intermediate scrutiny, the panel first concluded that because California permits minors under supervision to possess and use firearms for hunting and other lawful activities, § 22949.80 facially regulates speech that concerns lawful activity and is not misleading.

Next, the panel held that § 22949.80 does not directly and materially advance California’s substantial interests in reducing gun violence and the unlawful use of firearms by minors. There was no evidence in the record that a minor in California has ever unlawfully bought a gun, including because of an ad.

Finally, the panel held that § 22949.80 was more extensive than necessary because it swept in truthful ads about lawful use of firearms for adults and minors alike. Because plaintiffs had shown a likelihood of success on the merits and the remaining preliminary injunction factors weighed in plaintiffs’ favor, the panel reversed the district court’s denial of the preliminary injunction and remanded for further proceedings.

Concurring, Judge VanDyke wrote separately to emphasize that laws like § 22949.80, which attempt to use the coercive power of the state to eliminate a viewpoint from public discourse, deserve strict scrutiny. This circuit’s precedent is ambiguous about whether viewpoint discriminatory laws that regulate commercial speech are subject to strict scrutiny. In the appropriate case, this circuit should make clear they are.

What was at stake? California found this ad for an AR-15 replica of .22 caliber rim-fire rifle objectionable.

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