In a rare legal challenge converging the First and Second amendments, a California gun store owner’s bid to continue advertising handguns has been denied by a federal judge, ending a temporary agreement between the store and the state Department of Justice to not enforce a nearly 100-year-old law that bans advertising handguns in public.
The case, brought by Tracy Rifle and Pistol owner Michael Baryla against California Attorney General Kamala Harris last year, targets a 1923 state law that allows gun stores to advertise rifles and shotguns but specifically prohibits displaying handgun ads in any way that can be seen from outside the store.
In arguing that the law violates his First Amendment right to free speech, Baryla asked a federal judge to grant an injunction preventing the state from enforcing the rule. Last week, U.S. District Judge Troy Nunley issued a conflicting order denying the request for a preliminary injunction, yet at the same time writing that the state failed to meet the legal burden required to justify the law.
Nunley concluded that “it is more likely than not” that Baryla will win the case but that the public interest in allowing the state to continue enforcing the ban outweighed free speech considerations.
“It’s disappointing, to say the least,” Baryla said. “The judge makes a clear case that it’s a definite infringement of First Amendment rights … and yet he still didn’t want to grant (the injunction) because it would upset the status quo.”
For now, the vinyl handgun decals that cover the length of Baryla’s store windows – including one next to an AR-15 semi-automatic rifle, which is legal to advertise since it isn’t a handgun – remain up, thanks to an agreement that Baryla previously reached with Harris’ office.
Baryla was issued a citation and ordered to remove the photos last year during a routine inspection of his store, about an hour south of Sacramento. The advertising ban was enacted to prevent someone who walks by a gun store while in the heat of an argument from buying a gun and immediately using it to shoot another person.
Lawyers for Harris argue in court documents that efforts to decrease handgun violence justify the law, which “directly advances that interest by dampening demand for emotion-driven impulse purchases of handguns.”
But Nunley found that argument is rendered moot by the state’s mandatory 10-day waiting period between someone buying a gun and taking possession of it. The waiting period acts as a sort of cooling-off period for prospective buyers, while also giving the state time to conduct a background check.
Similar laws exist in Pennsylvania, Texas and Washington, D.C., but it’s unclear if any of them are still actively enforced.
If Harris forces Baryla to remove the photos, he said he would cover them up, “creatively, of course,” until the case is decided.
“We have some ideas,” he said, including blurring the images and adding lettering on top that says, “The DOJ doesn’t want you to see this,” as a way to redact the handgun images.
“We’ll do something to piss them off,” Baryla said.
A spokeswoman for Harris said the department was reviewing the judge’s decision but otherwise declined to comment on the case.
Lawyers for the two sides will meet again next week and are required to submit a status update to the court at the end of the month. By then, Baryla will know if he has to take the photos down, said Calguns Foundation Executive Director Brandon Combs, who worked with Baryla to bring the case.
“It seems odd to conclude that we’re likely to win and that the government didn’t meet its burden,” Combs said of Nunley’s decision, adding that they might appeal it. “We’ve always been pretty confident that this is a winner.”