How much is that handgun in the window?
That’s a question Californians can’t ask, thanks to a law that states handguns, or even pictures of them, may not be visible from outside of gun stores. Four Golden State gun dealers are challenging the law, saying it’s their First Amendment right to advertise their wares.
“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,” said Michael Baryla, the owner of Tracy Rifle & Pistol. “That’s about as silly a law as you could imagine, even here in California.”
While most federal lawsuits involving gun rights invoke the Second Amendment, the gun dealers are claiming it is their First Amendment right to freedom of speech that is violated by California Penal Code section 26820. That law, first enacted in 1923, bans gun stores from putting up signs advertising the sale of handguns — but not shotguns or rifles.
“The First Amendment prevents the government from telling businesses it disfavors that they can’t engage in truthful advertising,” said Bradley Benbrook, the lead attorney on a legal team that also includes UCLA Law Professor Eugene Volokh.
Controversial goods and services, such as abortion and contraceptives, are clearly protected under the First Amendment, Benbrook added.
The suit was filed Monday in the Eastern District of California, in Sacramento. It names California Attorney General Kamala Harris and Stephen Lindley, who heads the state Department of Justice’s Bureau of Firearms, as co-defendants.
Tracy Rifle and Pistol, a gun store and firing range in San Joaquin County, was recently cited by state authorities for having pictures of three handguns in window signs that could be seen from outside the store. A photo of an AR-15 rifle in an adjacent window, part of a display ad for which Baryla paid a total of $3,000, did not draw a citation. He has until February to take down the photos.
Similar laws banning handgun displays are on the books in Pennsylvania, Texas and Washington, D.C., but are rarely, if ever, enforced.
David Beltran, spokesman for Harris, said the attorney general had no comment on the case or the law.
Volokh, a prolific blogger on legal matters and a one-time clerk for former U.S. Supreme Court Justice Sandra Day O’Connor, said the dealers have a strong case.
“You simply can’t restrict speech because some people find it offensive,” Volokh said. “That’s true with flag burning, and it’s true in advertising.”
Volokh noted that there is an exception for hard-core pornography, which can be barred from display in public places. But while some may find handguns offensive, mere pictures of them or even words notifying the public that they are for sale are protected by the Constitution, he said.
“Some people are more upset by handguns than rifles and shotguns, I think in part, because the bulk of crime committed with guns involves handguns,” Volkh said. “But speech does not lose its protection simply because some find it offensive.”
Joining Baryla are the owners of Sacramento Black Rifle of Rocklin, Ten Percent Firearms of Taft, and PRK Arms, a Fresno-based dealer that operates three stores in the Central San Joaquin Valley. Ten Percent was recently cited by the state Bureau of Firearms for displaying a metal cutout of a revolver on a sign.
Brandon Combs, executive director of the Calguns Foundation, a Second Amendment advocacy group which backs the gun dealers, said the question is whether guns are obscene and must be hidden from public view. The answer, he said, is no, regardless of the type of gun.
“And handguns are the most protected weapon under the Second Amendment,” Combs said. The Supreme Court has said handguns are the quintessential weapon of self defense. It's a great case, and I'm excited to see it go forward."