9th Circuit rules California ban on marketing guns to minors is probably unconstitutional

FILE - People wait in line to enter a gun store in Culver City, Calif., on March 15, 2020. On Thursday, Sept. 7, 2023, the California Senate voted to raise taxes on the sale of guns and ammunition in the state. If it becomes law, the money would pay for violence prevention programs and school security improvements. (AP Photo/Ringo H.W. Chiu, File)
People wait in line to enter a gun store in Culver City, (Ringo H.W. Chiu / Associated Press)

California's law banning the marketing of firearms to minors is probably unconstitutional under the 1st Amendment, a federal appellate court ruled Wednesday.

Writing for a unanimous three-judge panel of the U.S. 9th Circuit Court of Appeals, Circuit Judge Kenneth K. Lee wrote that while the ban may be intended to diminish gun violence, the "First Amendment demands more than good intentions and wishful thinking to warrant the government’s muzzling of speech."

California allows minors to use guns under adult supervision for hunting and other activities, Lee wrote, and the state "cannot straitjacket the First Amendment by, on the one hand, allowing minors to possess and use firearms and then, on the other hand, banning truthful advertisements about that lawful use of firearms."

The ruling reverses a lower court decision that went against several gun groups and denied their request for a pause on the law's enforcement while they sue over its legitimacy. The case has now been sent back down to the lower court for further proceedings. It marks a major victory for gun clubs that work with kids and which had argued that the ban — under Assembly Bill 2571, signed into law in 2022 — prevented them from attracting young members and teaching them how to safely operate firearms.

The ruling is the latest in a series of federal court decisions that have begun dismantling gun laws around the country in recent months, particularly in liberal states like California. While many of those decisions have relied on a new interpretation of the 2nd Amendment right to bear arms that was put in place by the U.S. Supreme Court last year, Wednesday's ruling hinged instead on the 1st Amendment.

Read more: Thanks to the Supreme Court, California gun cases hinge more on history than modern threats

California "cannot ban truthful ads about lawful firearm use among adults and minors unless it can show that such an intrusion into the First Amendment will significantly further the state’s interest in curtailing unlawful and violent use of firearms by minors," and it had produced no such evidence, Lee wrote.

"There was no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad," or that "truthful ads about lawful uses of guns — like an ad about hunting rifles in Junior Sports Magazines’ Junior Shooters — encourage illegal or violent gun use among minors," Lee wrote, and California cannot "lean on gossamers of speculation" to make such claims.

Lee, appointed by President Trump, was joined in the decision by circuit Judges N. Randy Smith, a George W. Bush appointee, and Lawrence VanDyke, another Trump appointee.

The lawsuit was brought by Junior Sports Magazines and various other gun groups in California.

Chuck Michel, president and general counsel for the California Rifle and Pistol Assn., which was one of the litigants, praised the ruling in a statement Wednesday. He blamed the ban on Gov. Gavin Newsom, a Democrat.

"Newsom’s efforts to eliminate youth shooting activities, hunting, and the next generation of Second Amendment advocates who understand their rights has been stopped again," Michel said. "This is another example of legislative overreach and the politicians' willingness to trample on constitutional rights."

Michel's firm in a statement advised gun groups to continue operating as if the ban is still in place until the lower court can act on the appellate court's decision and issue a new order on their requested injunction.

California Atty. Gen. Rob Bonta's office, which has been defending the law in court, said it was "reviewing the decision and will respond appropriately."

Read more: 9th Circuit ruling threatens California ban on unlicensed open carry of handguns

The ruling Tuesday came in one of two distinct challenges to California's advertising ban. Lower court judges had denied gun groups preliminary injunctions in each. After the last of those rulings in January, Bonta had said in a statement that the "idea of marketing dangerous weapons to kids is despicable," and his office would continue defending the law.

"Our children and families have endured enough fear and pain from endless gun violence tragedies — it's time to end this," Bonta said.

Assemblymember Rebecca Bauer-Kahan (D-Orinda), who sponsored the bill in Sacramento, blasted the court's decision as the work of "activist judges" willing to put "their own agenda above the safety of our children."

"I am shocked and disappointed that the Ninth Circuit does not see what every Californian knows: There is a clear substantial governmental interest in protecting our children from the scourge of gun violence that is the leading cause of death for children," she said.

Erwin Chemerinsky, dean of the UC Berkeley School of Law and a 1st Amendment scholar, said it would be easy to cast the decision as another conservative panel ruling against guns, but the decision really wasn't about guns, but speech — and the decision was "consistent with Supreme Court decisions with regard to commercial speech."

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This story originally appeared in Los Angeles Times.