LOS ANGELES (CN) — A panel of the Ninth Circuit Court of Appeals appeared to struggle with the idea that a recent California ban on ads for firearms and related products aimed at minors would somehow reduce gun violence among children.
“It doesn’t pass the straight-face test,” Circuit Judge Lawrence VanDyke, a Donald Trump appointee, said at a hearing Wednesday on two challenges to the 2022 California law that had failed to persuade lower court judges to block enforcement of the statute.
VanDyke and Circuit Judge Kenneth Lee, also a Trump appointee, repeatedly asked a lawyer for the state to point them to any evidence that the restrictions on advertisements would limit unlawful possessions of firearms by minors.
California’s argument that it was common sense that banning ads aimed at children would reduce demand wasn’t persuasive, according to VanDyke, because it wasn’t intuitive that such advertisements, rather than movies and violent video games, was driving any such demand.
The panel, rounded out by Senior Circuit Judge N. Randy Smith, a George W. Bush appointee, didn’t say whether they would overturn the rulings of two judges who declined to issue preliminary injunction to halt enforcement of the law until its legality had been resolved.
The California law, Assembly Bill 2571, was passed last year among a raft of gun legislation by state lawmakers, prompted in part by the increase of gun violence, including school shootings, among children both in California and nationwide. Gun violence is now the third leading cause of death for children and teens in California, according to the state, and firearm-related injuries has surpassed car crashes as the leading cause of death among children and adolescents nationwide.
The publisher of “Junior Shooters” magazine, the California Rifle & Pistol Association and several youth sport shooting organizations filed a lawsuit in Los Angeles federal court last year alleging that AB 2571 unfairly targets pro-Second Amendment organizations by barring any kind of industry advertising designed to make firearms appealing to minors.
A separate case was filed in federal court in Sacramento, where youth sports and pro-hunting groups argued that the law violated gun manufacturers’ freedom of speech. U.S. District Judge Dale Drozd in January denied their bid to block the law, saying that states had the right to regulate commercial speech.
Anna Barvir, an attorney for Junior Sports Magazines, argued at the hearing that the California law was “hopelessly over-inclusive” and vague and that it was driven by animosity toward people who exercise their constitutional right to own firearms.
“AB 2571 was never really about preventing the unlawful sale of firearms to minors,” Barvir said. “The legislative history is chock-full of references to the primary impetus for the law — that is, animus for gun culture and firearm industry members specifically.”
The panel hearing the two appeals showed little interest in the plaintiffs’ discrimination claims, accepting that the law only pertains to commercial speech, as opposed to political or advocacy speech. That narrow approach, however, didn’t take away from their concern that the restrictions of what otherwise would be truthful and lawful advertising appeared to have little empirical connection to a legitimate government interest.
The outcome of the two appeals may turn on whether the judges who refused the block the law abused their discretion in finding that the state’s interest justified the restrictions on commercial speech, and in particular, whether their findings were based on legal or factual conclusions.
“If it’s an abuse of discretion, then I’ve got to say he got the law wrong on that or it was so outlandish, his idea of the facts, it wouldn’t hold up,” Smith said. “I don’t know they got the law wrong.”
Follow @edpettersson
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