News

California Gun Dealers Fire Back in First Amendment Lawsuit

March 6, 2015 (SACRAMENTO, CA) — A number of California firearm retailers are firing back in a federal civil rights lawsuit against Attorney General Kamala Harris and the State’s Department of Justice.
The case was filed last November after the DOJ cited a Tracy, California gun dealer for having pictures of handguns in his store’s windows in violation of Penal Code section 26820. Plaintiffs include Tracy Rifle and Pistol, Sacramento Black Rifle, Ten Percent Firearms, PRK Arms, and Imbert & Smithers.
The plaintiffs say that the law, passed in 1923, is a ban on constitutionally-protected speech — speech that the dealers believe is protected under the First Amendment.
In a recent court filing opposing the challenge, the Attorney General argued that “California has a substantial interest in decreasing handgun violence and [Penal Code] section 26820 directly advances that interest by dampening demand for emotion-driven impulse purchases of handguns.”
“Typically the government is less upfront about its desire to use speech restrictions for other policy goals,” attorneys for the gun dealers said in their reply brief.

The gun retailers’ brief went on to say that, “At bottom, the Attorney General thinks that people’s exercise of their Second Amendment rights is unwise and dangerous. As a result, the Attorney General would like people not to exercise those constitutional rights, much as the Virginia Legislature did in Bigelow v. Virginia…when it restricted advertising for abortions.”
The Virginia abortion advertising ban was struck down in 1975 by the United States Supreme Court.
“The Attorney General might prefer a world without handguns and an Orwellian ban on Second Amendment-related speech, but the Supreme Court has told us the government can’t use speech restrictions to chill the exercise of other fundamental rights,” commented Brandon Combs, president of California Association of Federal Firearms Licensees, the state’s firearm industry association.
Tracy Rifle and Pistol owner Michael Baryla added: “The First Amendment prevents the government from muzzling citizens and businesses that government officials don’t approve of.  This speech ban should be struck down.”
Quipped Baryla, “Ms. Harris’ heavy-handed attacks on our free speech don’t seem like very ‘liberal’ policies to me at all.”
The plaintiffs’ pending motion for preliminary injunction against the statute is scheduled to be heard by U.S. District Court Judge Troy L. Nunley at 2 p.m. on March 12, 2015, in Courtroom 2 (15th floor) at the Robert T. Matsui United States Courthouse, 501 I Street, Sacramento, CA 95814.
Case documents for Tracy Rifle and Pistol, LLC, et al. v. Attorney General Kamala Harris, et al. can be viewed at calgunsfoundation.org/litigation/trap-v-harris.


Federal Court: California Handgun Roster Does Not Violate Second Amendment Rights

 

February 26, 2015 (SACRAMENTO, CA) -- In response to a federal district court decision released today on the constitutionality of the State of California’s “Unsafe Handgun Act” handgun roster and microstamping laws, The Calguns Foundation released the following statement:

“We are disappointed that the district court sidestepped a clear violation of Second Amendment civil rights in its decision today. However, we are absolutely committed to litigating this case as far as necessary to reverse this incorrect ruling and restore the right to keep and bear modern handguns in the Golden State.

It is difficult to understand how the Supreme Court’s landmark District of Columbia v. Heller decision could be so badly mis-applied. Laws that ban law-abiding people from acquiring virtually all modern handguns following a rigorous background check have no constitutional basis and must be overturned.

It is utterly preposterous that a Federal Court would rule that a ban on all new semi-automatic handguns does not burden Second Amendment rights. Such a decision conflicts with Ninth Circuit precedent, much less the Supreme Court’s holdings in Heller and McDonald v. Chicago.

Our counsel have already appealed the ruling to the Ninth Circuit Court of Appeals and will take every action necessary to create a successful outcome there.”

The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights.

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Media Contact:

Brandon Combs
(800) 556-2109

[email protected]


Richards v. Prieto Plaintiffs File Brief Opposing En Banc Rehearing in Peruta Carry Case

ROSEVILLE, CA (December 24, 2014) – Counsel for plaintiffs in the federal Second Amendment "right-to-carry" lawsuit Richards v. Prieto filed a brief in the Peruta v. San Diego matter earlier today, responding to two orders issued by the Ninth Circuit Court of Appeals on December 3.

Civil rights attorney Alan Gura, who prevailed at the U.S. Supreme Court in the landmark cases D.C. v. Heller and McDonald v. Chicago, submitted the brief on behalf of the Richards amici, or "friends of the court." Co-counsel Donald Kilmer of San Jose appears on the brief as well.
In the court filing, Gura argues that California Attorney General Kamala Harris shouldn't be allowed to intervene in place of San Diego Sheriff Gore, who opted to concede the issue following the court's February decision that held his "good cause" policy unconstitutional. The brief also says that the case should not be re-heard by the full, or "en banc", court.
"This Court has enough material to consider in evaluating the constitutionality of handgun carry licensing policies, without adding peculiar procedural complications and jurisdictional doubts that would only jeopardize the validity of any en banc outcome. The panel correctly decided this case, and rehearing is unwarranted," concluded Gura. "But regardless of whether the panel’s legal conclusions should be reconsidered, this case should end here, without rehearing en banc."

The Richards plaintiffs' brief can be viewed or downloaded at http://old.calgunsfoundation.org/wp-content/uploads/2014/12/2014_saf_peruta_en_banc_opp_amicus.pdf. The Calguns Foundation (www.calgunsfoundation.org) is a non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to defend and advance Second Amendment and related civil rights.
The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.


Federal Judge Rules Against California’s Bid to Delay End of Gun Waiting Periods for Some

Court order denying requests by California Attorney General Kamala Harris shows state's weak hand, reports The Calguns Foundation.
ROSEVILLE, CA / November 20, 2014 – California’s laws requiring gun purchasers to wait at least ten days before taking possession of their lawfully-acquired firearms are one step closer to being history, reports The Calguns Foundation, a gun rights group headquartered in the Sacramento suburb of Roseville.
In a new order released today, Federal District Court Judge Anthony W. Ishii rejected two requests made by California Attorney General Kamala Harris in the dispute, captioned Silvester, et al. v. Harris, that was filed in Fresno nearly three years ago.
"Defendant [Harris] made various arguments to justify the waiting period, but the evidence did not actually support a 10-day waiting period,” today’s order noted. “The [state’s] arguments were more in line with rational basis scrutiny”– a weak form of judicial review that was expressly rejected in the U.S. Supreme Court's landmark District of Columbia v. Heller decision – “than with intermediate scrutiny,” which forces governments to prove how a law impinging on a constitutional right serves an important purpose.
In the case of the waiting period laws, Attorney General Harris couldn’t.
"The Court notes that Defendant has not identified any error of law or any erroneous factual finding,” Judge Ishii explained in his denial of Harris’ requests. “The Court stands by its analysis and its findings that the waiting period laws violate the Second Amendment” as applied to the three classes of individuals that, plaintiffs successfully argued, shouldn’t be subject to the laws.

Harris had moved for a modification of the original August court order – which gave the state Department of Justice six months to take whatever steps were necessary to bring the agency’s policies in line with civil rights standards – to allow it a year to comply with the ruling, and also to delay the court’s enforcement of the order entirely until the appeals process had concluded. Both motions were denied.
"A bench trial has concluded, and a law that is actively being enforced has been found to be unconstitutional. The Court does not know how Defendant or the BOF prioritizes projects, but dealing with an unconstitutional law should be towards the top of the list."
“We’re pleased that Judge Ishii saw right through the Attorney General’s acrimonious delay tactics and properly denied her the opportunity to infringe our fundamental Second Amendment rights even more than she already has,” said Brandon Combs, the executive director of The Calguns Foundation and a plaintiff in the case. “Today’s court order bodes well for justice and, especially, for law-abiding gun purchasers.”
Harris, who has already filed a notice with the district court that she intends to take the loss to the Ninth Circuit Court of Appeals, will presumably argue against the court’s holding that “the 10-day waiting period violate[s] the Second Amendment as applied to three classes of individuals,” like those similarly situated to individual plaintiffs Jeff Silvester and Combs.
Notably, the waiting period requirement was first passed in the same 1923 legislative act as California’s “may-issue” concealed carry laws and a ban on the public display of handguns by gun dealers. Both of those regulations are currently being challenged in federal lawsuits backed by The Calguns Foundation and the Second Amendment Foundation, who are institutional plaintiffs in the Silvester case. The Ninth Circuit is currently considering Yolo County Sheriff Ed Prieto’s request for rehearing of a decision that found his carry license policies violate the Second Amendment right to bear arms. Meanwhile, four gun dealers seeking to strike down the ban on commercial speech filed a motion for preliminary injunction in Sacramento’s federal district court on Monday, arguing the handgun display ban violates the First Amendment.
The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to defend and advance Second Amendment and related civil rights.
The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.


California gun dealers file First Amendment lawsuit against Attorney General Kamala Harris, California DOJ

November 10, 2014 (SACRAMENTO, CA) — Four California gun dealers are filing a federal lawsuit today against California Attorney General Kamala Harris over what they say is a violation of their First Amendment civil rights. Stephen Lindley, who heads the DOJ’s Bureau of Firearms, is named as a co-defendant in the case.
Tracy Rifle and Pistol, a firearm retailer and indoor shooting range located in San Joaquin County, was recently cited by Harris’ Department of Justice for having pictures of three handguns in window signs that can be seen outside the store. California Penal Code section 26820, first enacted in 1923, bans gun stores from putting up signs advertising the sale of handguns — but not shotguns or rifles. An adjacent window image at Tracy Rifle, which shows a photograph of an AR-15 rifle, was not cited by the DOJ.
“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,” explained Michael Baryla, the owner of Tracy Rifle and Pistol. “That’s about as silly a law as you could imagine, even here in California.”
While California gun dealers cannot display even the word ‘handgun’ at their stores to passersby, adjacent businesses and anti-gun protesters are not prohibited from doing as much. The court filings argue that the law operates as unconstitutional speaker, content, and viewpoint-based discrimination, in addition to having other legal problems.
Similar statutes banning handgun displays can be found in places like Pennsylvania, Texas, and Washington, D.C., but the California Department of Justice appears to be the only state agency enforcing provisions like the challenged ban.
The lawsuit claims that this restriction violates gun stores’ First Amendment rights, by severely restricting truthful, non-misleading commercial speech. Lead counsel Bradley Benbrook said about the lawsuit, “The First Amendment prevents the government from telling businesses it disfavors that they can’t engage in truthful advertising. This case follows a long line of Supreme Court cases protecting such disfavored businesses from that type of censorship.”
Though the case doesn’t claim a Second Amendment violation, plaintiffs do argue that commercial advertisement of constitutionally protected products and services — whether abortion, contraceptives, or guns — is especially clearly protected under the First Amendment.
The plaintiffs are also represented by Benbrook’s colleague Stephen Duvernay and Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments. Before joining the UCLA faculty 20 years ago, Volokh clerked for Judge Alex Kozinski of the Ninth Circuit Court of Appeals and Justice Sandra Day O’Connor of the U.S. Supreme Court. He also operates the popular legal blog “The Volokh Conspiracy,” now hosted at the Washington Post.
California Association of Federal Firearms Licensees, the state’s firearm industry association, joined gun rights groups The Calguns Foundation and Second Amendment Foundation in support of the case.
The lawsuit’s other plaintiffs include Sacramento Black Rifle of Rocklin, Ten Percent Firearms of Taft, and PRK Arms, a Fresno-based dealer that operates a chain of three stores in California’s Central San Joaquin Valley, as well as business owners Robert Adams, Wesley Morris, and Jeffrey Mullen, respectively.
A copy of the complaint can be viewed at http://www.calgunsfoundation.org/litigation/trap-v-harris.
California Association of Federal Firearm Licensees (www.calffl.org) is California’s most tenacious advocacy group for Second Amendment and related economic rights. CAL-FFL members include firearm dealers, training professionals, shooting ranges, collectors, gun owners, and others who participate in the firearms ecosystem.
The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights.
The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.