Writing for the three-judge panel of the U.S. 9th Circuit Court of Appeals, which decided unanimously, Judge Kenneth K. Lee stated in a 34-page opinion that California’s law did not directly advance the state’s 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, let alone because of an ad,” Lee wrote. The legislation was signed into law last year, barring the marketing of any firearm-related products in a way that “reasonably appears to be attractive to minors.” Lee explained that the core issue with the case is whether California can ban truthful advertising about firearms legally used by adults and minors just because an ad could be viewed as attractive to minors: A federal appeals court has struck down a California law that sought to restrict the marketing of firearms, declaring that the law is likely a violation of the U.S. Constitution’s First Amendment.
Under our First Amendment jurisprudence, states can ban truthful and lawful advertising only if it “materially” and “directly” advances a substantial government interest and is no more extensive than necessary. California likely cannot meet this high bar. While California has a substantial interest in reducing gun violence and unlawful use of firearms by minors, its law does not “directly” and “materially” further either goal. California 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. There is no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad. Nor has the state produced any evidence 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. Simply put, California cannot lean on gossamers of speculation to weave an evidence-free narrative that its law curbing the First Amendment “significantly” decreases unlawful gun use among minors. The First Amendment demands more than good intentions and wishful thinking to warrant the government’s muzzling of speech. The 9th Circuit, comprised of 30 judges, has long been considered one of the most liberal appeals courts in the country. The three-judge panel who reviewed this case, however, had three Republican-appointed judges. Chuck Michel, the president of the California Rifle & Pistol Association, applauded the decision in a statement, saying, “This is another example of legislative overreach and the politicians’ willingness to trample on constitutional rights.” California Gov. Gavin Newsom opposed the ruling, charging, “The court is fighting to protect marketing weapons of war to children. It is pure insanity.”
