California Gun Dealers Sue Over 1st Amendment Infringement

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A number of California firearms retailers have filed a federal civil-rights lawsuit against state Attorney General Kamala Harris and the state’s Department of Justice on free-speech grounds. A Calguns Foundation release said the case, Tracy Rifle and Pistol, LLC, et al. v. Attorney General Kamala Harris, et al., 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.

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A number of California firearms retailers have filed a federal civil-rights lawsuit against state Attorney General Kamala Harris and the state’s Department of Justice on free-speech grounds.

Plaintiffs include Tracy Rifle and Pistol, Sacramento Black Rifle, Ten Percent Firearms, PRK Arms, and Imbert & Smithers. Tracy Rifle and Pistol owner Michael Baryla said, “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.” “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,” said Brandon Combs, president of California Association of Federal Firearms Licensees, the state’s firearm industry association.

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, “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 United States Supreme Court struck down the Virginia abortion-advertising ban in 1975.

Is California infringing on gun dealers’ free-speech rights as well as its citizens’ gun rights? Tell us your thoughts below.

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Comments (46)

  1. California calls itself The Golden State, but a more-to-the-point title would be The Granola State — it is chock-full of fruits, nuts, and flakes!

  2. ““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.””

    Wasn’t that the goal of waiting periods? IE: in that miserable state you can WANT a gun until the cows come home … you ALREADY can’t make an emotional purchase of one … unless you can hold that thought for what? 3 days? 10? (I lose track of that nonsense and seldom a week goes by that I am not grateful to live in North Carolina!)

    On second thought, if you can vote based on emotions, you should be able to buy a gun based on them.

  3. Don P writes that Abraham Lincoln outlawed slavery.

    The Emancipation Proclamation freed no slaves at all.

    It purported to free all slaves in those parts of the Confederate States of America that had not yet been re-conquered by the United States of America. Slaves in re-conquered territories and in those States of the United States that still practiced slavery (such as Delaware, Maryland, and West Virginia) were specifically exempted from the terms of the Proclamation.

    By way of parallel: If Queen Elizabeth II were to issue a Royal proclamation ordering all able-bodied men between the ages of 18 and 30 in Massachusetts to report for military service, no one would need to comply because Massachusetts has not been subject to British royal edicts since 1776. Even so, the unreconquered portions of the Confederate States of America had not been subject to US presidential proclamations since their several States’ secessions.

    (The end of slavery in the United States came on 18 December 1865 with final ratification of the Thirteenth Amendment — some eight months AFTER Lincoln’s death.)

    Here follows the text of the Emancipation Proclamation, with emphasis added:

    By the President of the United States of America:
    A Proclamation.

    Whereas, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit:

    “That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves WITHIN ANY STATE OR DESIGNATED PART OF A STATE, THE PEOPLE WHEREOF SHALL THEN BE IN REBELLION AGAINST THE UNITED STATES, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

    “That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States.”

    Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:
    Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)],AND WHICH EXCEPTED PARTS, ARE FOR THE PRESENT, LEFT PRECISELY AS IF THIS PROCLAMATION WERE NOT ISSUED.

    And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

    And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.

    And I further declare and make known, that such persons of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

    And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.

    In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

    Done at the City of Washington, this first day of January, in the year of our Lord one thousand eight hundred and sixty three, and of the Independence of the United States of America the eighty-seventh.

    By the President: ABRAHAM LINCOLN
    WILLIAM H. SEWARD, Secretary of State.

    1. Clifton Palmer McLendon
      Maybe you missed it, but exactly when the slaves were freed wasn’t the point. Thank you for clarifying exactly when they were freed, but it really doesn’t affect my point other than add to my point. That effect is just to add two years on to the 244 years to make 246 years that slavery was legal in at least some part of this land. If it was legal that long, by the logic in kiljoy616’s statement, then there was apparently nothing wrong with it and I’m still wondering if that was his intended message,

  4. Those gun stores need to have a large poster in their window of an AR with all of the attachments, white-out just the AR and insert the phrase “Banned by California Penal Code section 26820” in big red print. Then underneath they could write: “Come on in and we’ll show you what the gun looks like”.

    Oh, that’s right… you guys can’t have “real” ARs in California.

  5. Cali. has gotten to be sooooo…….. It’s hard to believe that at onr time it was where you went to be free. Now it’s a joke with out a punch line. Anti-car, anti-gun, anti-fun. Next thing you know they’ll tax the sunshine.

  6. Sadly the “DUMB MAJORITY” is running the “US of A” into a deep hole of worthlessness.This once great nation is no longer the country the world respects and trust’s.

    “We The People” are no longer served by the people we voted for and trusted to run this country the right way.

    “We The People” are now serving our elected “Masters in Washington”. Who only serve themselves.Too many of the “DUMB MAJORITY”, are too busy with their own life problems to concern themselves with the running of this nation and it’s problems.Thus the continued lowering of the American standard of living. The “bar of life” that was once set high in America, is now so low, you need to crawl on your belly to get under it.

    There are too few of us “SMART MINORITY” to make the changes this country needs to put America back on top. Our numbers are too few to make the difference with a vote.The only way for the “SMART MINORITY” to help right the continuing wrongs of this country.Is by a BLOODY REVOLT. YES, BLOOD must be spilled to thin down the numbers of the “DUMB MAJORITY”. So the “DUMB MAJORITY” will become the “DUMB FEW”.That is the only way I see this once great country, becoming a great nation again.

    Tyranny has many faces, right now the “DUMB MAJORITY” is one of them. AND California is a state of the “DUMB MAJORITY”.

  7. A 1923 law and now someone is bitching about it. I think there must be more to this if it took this long for anyone to care.

    As for the pictures I am all about their free speech but where are they located since there are plenty of malls and places where for ascetic reason they don’t allow anyone to pose pictures of their products. If this is not the case then fine but if it has something to do with a law everyone not just gun shops are following they they need to sit down and STFU

    1. “A 1923 law and now someone is bitching about it. I think there must be more to this if it took this long for anyone to care.”

      Maybe I misunderstood the intent of your statement, but it sounds to me like you are saying that since the law has been in effect for 92 years, and it hasn’t been previously overturned, that there must not be anything wrong with the law and the plaintiffs must have some nefarious reason to be complaining. If that was not your intent, then please clarify your statement. Otherwise, going with that same logic, since slavery had been in acceptance in what is now these United States from around 1619 until 1863 (approximately 244 years), you could say that there must have been nothing wrong with it and President Lincoln must have had some nefarious reason to outlaw it. Is that your logic?

      As for their location, logic (of most people) would tell them that if it was the rules of a mall or shopping center preventing them from displaying their pictures, they would be suing that mall or shopping center. Since they are suing the state, or more specifically the attorney general of California, it should be apparent that they are complaining about the state’s rules, since the state is not responsible for any rules other than their own. Then, to make it blatantly obvious, the article specified that they filed the suit after the DOJ cited them for being in violation of Penal Code section 26820. How many malls or shopping centers do you know of that have their own DOJ and/or penal codes?

      Ascetic: characterized by or suggesting the practice of severe self-discipline and abstention from all forms of indulgence, typically for religious reasons.

      I’m not saying that “ascetic” is an incorrect choice, since I guess it “could” be interpreted to work, but I think the word you were looking for was “aesthetic” (concerned with beauty or the appreciation of beauty).

  8. I agree with everyone here, crapifornia sucks!!
    I lived there for over 13 years myself but luckily I escaped, and it is by far the worst state in the country! Ive been to nearly every state and have found that it is exactly as Ryan Woltering said (good luck friend).
    Hate the majority of people, the criminal politics and politicians, the ignorant mindless fools protecting everything that is wrong with this country, the illegal immigrants, the immoral and the selfish and greedy. I would NEVER again go back to that outhouse spithole to live!

  9. the right to bear arms shall not be infringed, this is the whole fact any law passed to restrict ownership to anyone is unconstitutional in any degree without some change and ratification by the states.

    1. Rich,

      The law in question has nothing to do with the second amendment. It is not violating the second amendment. It is not restricting anyone’s ability to buy or own a gun. It is only a restriction on how the gun shop can advertise their merchandise. It is a violation of the first amendment.

  10. I especially like the fact that my hard earned money is being taken in the form of egregious taxation only to be turned around and spent by the people in the capital to further erode my love, my hobby, my RIGHTS!, of course this isn’t when they’re spending my money on personal protection, expensive luncheons and private air craft. I don’t see any of our tax money going to say, help me keep my home, since what was an investment, tanked, turning into a money pit in a poor economy all created by the same people who were supposed to be supporting the American dream, but we’re instead lineing their pockets through the destruction of the middle class.
    If your a citizen here they will strip you of your rights and take every opportunity to strip the clothes right off your back. If your an illegal here, everything is free, ah california where the streets are paved in gold for all who enter illegally or sit in office.

  11. We also hear of a school child getting suspended for scrawling a crude picture of a firearm in class! Same mentality. If the nuns caught me drawing (it was always “Army Men” related) I was in trouble for actually drawing pictures, not the subject matter. I became quite the illustrator by copying panels from Sgt. Rock and Nick Fury’s Howling Commandos. Now these fine examples of “gun artistry” are not even in print! Look at the Gory video games that are all over. Is there a code that does not permit a child from viewing these? In the real world, these kids grow up to become Air Force drone pilots. Its not the image, it is the example set that does the damage. Homer Simpson said it best. “10 days? But I need it now!”

  12. I feel the same way about aspects of CA but my wife’s wonderful family holds us here. We’d lose our retirement medical if we left. So, one does what one can. I vote (even when it doesn’t work) I stay an informed NRA member who is a known neighborhood source where a gun can be “checked into” my safe when domestically required. A “lively” neighbor with teens buys a revolver from “somewhere”, I buy him a pistol trigger lock and give both him AND his wife a key. Its things like this this, done in numbers, that makes a difference when one’s choices are taken away. I also think dividing CA into at least two states would make a BIG difference. Don, South California.

    1. CRASH!!!

      Wife: There’s a burglar in the house!

      Husband: Honey, do you know where the key to the gun is?

  13. According to the AG “…[Penal Code] section 26820 directly advances that interest by dampening demand for emotion-driven impulse purchases of handguns.” As a resident of California I’m a little confused we have a 10 day waiting period on handgun & long gun purchases already. No impulse buys here.

  14. I live in hell. It’s called california. I hate this state. I hate the majority of people that reside in it, and don’t get me started on its legislative bodies. I might as well live in stalins Russia. Nobody will stand up and do anything about the crap that goes on here, and as a nra life member I’m ashamed of the nra ila as they’ve done next to nothing. Screw this state.

    1. I agree at times I get sick with the current party in control, but there are people doing something. Multiple lawsuits are on going, unfortunately they take a long time. Also, Ruger and Smith & Wesson are not giving into micro stamping on handguns (hopefully this strategy will work). You say nobody will stand up and do anything, make sure that you are and inform people about what is going on. I just started learning about the firearm laws from my brother who lives in another state. It was not that I did not care but did not know nor was interested in firearms at the time. It takes perseverance. This is a marathon that we are in.

    2. Mr. Woltering: I agree wholeheartedly with your assessment of the
      Granola State (full of fruits, nuts, and flakes)!

      I invite you (and anybody else like you) to come to Texas. There is plenty of room. We are firearms-friendly. There is no State income tax.

    3. I know how you feel, and there should not be ANYONE banned if they choose to carry a weapon in California if they are permitted a concealed carry permit from another state. “Permission” to exercise a right, is definitely so debatable, but plain common sense is lacking in such a Liberal, communist state such as Cali. I have the opportunity to travel there this summer,and stay for a couple months. As a resident of another state( which I hold a Conceal Carry Permit) I want to have my weapon on me at all times as I do in my home state. I know I can’t as I am not a resident. So I tried checking to see if I can ship it to keep INSIDE the home that I will stay. Alls I can say is California sucks! I either expend a lot of cash to have it happen( for just a home weapon) or I would have to turn myself into being a criminal in order to drive 2500 miles and illegally bring it into the state. This is just redickuless. Guess the state has disarmed the law abiding, and lets the criminals and gang bangers roam free. Heart breaking. Reciprocity should be demanded for all states, even Hawaii.

  15. So all the Treyvon’s in Oakland, Compton and Stockton see pistol pictures in the window’s of gun shops and that causes them to commit violent felonies?

    California Liberal Logic at it’s finest. I mean, what else could you expect from the former District Attorney for San Francisco who has the LOWEST felony conviction rate in the history of that city.

  16. Her argument makes perfect, perfect sense. Too bad the state needs the tax dollars from the TV industry so al the gory disgusting gun touting violence exhibits CAN be viewed by her constituents.

    This individual’s arguments are priceless. Is she mentally even rational? Can she tell the CA citizen how is millions of people watching gory TV shows better than a few seeing a picture on a window?

    PLEASE, this is not a rethorical question. Can someone ask this general to elaborate on her no sequiturs?

  17. So AG Harris says that not allowing handgun images to be displayed in store windows dampens, “….emotion-driven impulse purchases of handguns.” Good luck using that argument in court, since California already has a lengthy waiting period before taking delivery of a handgun.

    1. I live in Akansas , we have no waiting period ! I walk in and tell them I want to purchase and rifle or handgun , present Id , they check it , they contact the nics and within 30 min . if I pass , I can leave with the gun ! Easy peasey ! Also when I apply for a ccw , I have to present photo two fingerprint cards , one for FBI and one for state send it to the state patrol with fee , 3-4 mos. later if I pass , I get my license .!

    2. “I live in Akansas , we have no waiting period !”

      I live in Florida and I also don’t have a waiting period. The reason is that I, like yourself, have a CCW and that is my waiting period. The dealer just has to make the phone call to verify it is valid and I can pay and leave with it. My question for you is… does your state actually not have a waiting period for anyone? (That is what your statement is implying.) Or does the state have a waiting period for everyone except those people, like yourself, who have a CCW?

  18. I invite, encourage, emplore allCA conservatives to move to WA state. We need your conservative votes here in the Seattle area to rid ourselves of the liberal cancer. WA is one of the few states that protects our firearms within our state Constitution which prohibits any law more restrictive than federal law so state and local communists cannot regulate anything firearms. The city of Seattle tried to ban open carry on public property and the Supreme Court struck it down. People are very well-armed in WA and all of you would be welcomed with open arms. Besides we have the Seahawks and the Mariners and some of the greatest hunting in the country in Eastern WA. Please come up and help us vote these libertird phuqers out of here.

  19. The crux of the problem is that the 1st and 2nd Amendment were the product of people with an English (Great Britain) ethnicity whereas Non-Hispanic Whites are the minority, 37.9%, of those living in California. Thus the majority of the people in the state come from societies which do not place the same value on personal liberty as those who wrote the Constitution. When you subtract the sheeple portion of the Non-Hispanic White population, those who have traditional American values are greatly numbered.
    And when you factor in the birth and immigration rates of the Non-Hispanic Whites, it is clear that the situation in California will only get worse.

    Non-Hispanic Whites (especially the Hetrosexual ones) should learn from India, when they recognized that it is impossible for people with vastly different values to co-exist (in India it was Muslims vs everyone else), thus the partitioned the county into India and Pakistan (which later became Pakistan and Bangladesh) and get the hell out.

    One of the remaining rights granted by the Constitution is the ability to freely move from one state to another.

    For example Colorado has been taken over largely by Libtard Californians. If the few remaining traditional Americans would move to that state, they may tip the balance of power back to those who have the values of the former United States, both in that state and in the nation by changing Colorado’s election Congressional and Presidential races.

    1. “The crux of the problem is that the 1st and 2nd Amendment were the product of people with an English (Great Britain) ethnicity…”

      How about correcting the sound of that one? How about this?

      The 1st and 2nd Amendment were the product of people with an English (Great Britain) ethnicity. The crux of the problem is that Non-Hispanic Whites are the minority, 37.9%, of those living in California. Thus the majority of the people in the state come from societies which do not place the same value on personal liberty as those who wrote the Constitution. When you subtract the sheeple portion of the Non-Hispanic White population, those who have traditional American values are greatly outnumbered.

      That sounds better. I’m not saying yours was wrong, it was just easily misread as to who or what was the problem.

  20. What else is to be expected when half the population supports the other half and are then denigrated for not helping enough? We conservative Californians too often are afraid to voice our opinions, when we should at every opportunity pin the ears back of those welfarians and other liberal types who feel there is no problem with our (the taxpayers) being enslaved via our having to suffer income redistribution in order to support those who feel that their entitlements are quite normal, falling within their own value system—one which we should all embrace without comment or complaint, lest we be accused of not having “compassion.”

    I had to “let go” today in response to a front-page article in the Santa Rosa (CA) Press Democrat comments section about the supposed sad state of affairs with Denti-Cal patients’ not being accepted by dental offices. The common belief in this area is that dentists make “too much money” and that they can thusly afford to treat welfare patients for fees that don’t even pay office expenses. I put thing straight.

    The common attitude in Sonoma County is that those who work should be ashamed for complaining that they must support those who want to suck off the welfare teat, even thought they have the means and ability to work. Sonoma County is full of these types, and since they compose the majority, the politicians reflect their greedy wishes by passing laws that not only perpetuate the sham, but by also putting our state into debt. We are becoming another Detroit, and it is only a matter of time before we arrive at that exalted altar.

  21. I live in Communist California and not all of us support these people in power, in fact after the Nov 2014 election look at the results for San Diego county, all the current democrats would have been voted out. So please don’t lump us all in with the communist. We have a corrupt AG, but she was voted in. Too many people in this state think from a position of fear instead of basic thinking. Thanks to all who do support those of us who support the 2nd Ammendment in our state.

    1. “…all the current democrats would have been voted out.”

      Are you saying, as the statement implies, that they were not voted out? If so, why not?

  22. I hope this dealer wins larger than life. I pray that somebody will get in to national office that will take a long hard look at California and other extreme liberal states in an effort to see if the current laws of these foresaken places are not seditious in themselves and if so, do something to correct this horrible trend at compromising basic freedoms.

  23. I think the State of California should joint the rest of the UNITED STATES OF AMERICA the home of the free. Our four father included thee entire United States when the composed the Constitution. This is not a dictatorship like the White house has been for the past six years. We the people are suppose to be the ones that the politicians are working for which they seem to forget often.

  24. Is California infringing on gun dealers’ free-speech rights as well as its citizens’ gun rights? Well yeah , what an understatement. Besides our East coast attempts at wholesale infringement bastions I can think of no place I’d rather NOT preside in. If putting pictures in store windows is the best that the firearms dealer’s association can do for a subject of a lawsuit against the State government then I am not surprised that the liberal scum rides rough-shod over the rest of the 2nd amendment in that state. It’s time for the real patriots over there on the far west coast to rise up and clean house of the trouble-making pack of clowns they’ve allowed to populate their legislative bodies so that the Boxers/ Yee s/ Fiendstiens and their ilk can quit with the unrelenting attempts to warp the Republic to their version of communist-faciscta- Nazism that is so craved by the traitors in our midst
    Finally, -Wow- to think that a law like that has been on their books since – 1923 -? for Christsakes! without I being challenged until now? sorry to say ” only in Commiefornia…..”

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