The Power of the First Amendment: District Judge Declares California’s Restrictions on Gun Advertisements Unconstitutional

Written by Collin M. Carr


The California Penal Code states that “[n]o handgun or imitation handgun, or placard advertising the sale or transfer” of handguns “shall be displayed in any part of the premises where it can readily be seen from the outside.” On September 11, 2018, a federal district judge for the Eastern District of California found this statute constitutionally problematic under the First Amendment and prohibited California from enforcing it in a decision that underscores how the law prioritizes freedom of expression over other policy-based concerns.


Between 2010 and 2015, the California Department of Justice issued citations to various gun shop owners for violating § 26820 of the California Penal Code by displaying images depicting firearms on the exterior of their businesses. Aside from issuing citations, the state officials also instructed the owners to remove the prohibited content. These materials included a metal sign outlined as a revolver, a logo shaped as a pistol, and vinyl window decals depicting rifles. While the nature of the materials differed, they all shared one common, prohibited feature: they communicated to the public that the store sold firearms.

The First Amendment Battle

Arguing that the state law infringed on their freedom of speech under the First Amendment, the gun shop owners filed a lawsuit in federal court seeking a court order prohibiting the state from enforcing the law. To determine whether the law in fact infringed on the owners’ First Amendment rights, Judge Troy Nunley conducted the four-part test used to evaluate restrictions on commercial speech.

This test first required the court to determine whether the images involved misleading speech, or speech advertising some form of “unlawful activity.” The court easily found that the images did not constitute a problematic form of commercial speech because the licensed selling and purchasing of firearms constitutes lawful activity, and the images did not create any misleading impression about the business conducted by the gun shops. Second, the court ascertained whether the government possessed a “substantial” interest in regulating the commercial speech. Again, the court easily found that the government imposed the law to serve the weighty interests of reducing gun-related crime and suicide.

The third prong, however, created the biggest area of disagreement and is where the court focused most of its attention. This prong requires the regulation to “directly” or “materially” further the government’s substantial interest. California reasoned that individuals who commit crime and suicide are more likely to possess “impulsive personality traits.” As such, the large images of firearms target people with impulsive personality traits by inducing them into purchasing weapons. The regulation, California asserted, therefore furthered its substantial interest in reducing crime and suicide rates by preventing such individuals from seeing these images and acting on such impulses.

This argument failed to persuade the court. It pointed to the argument’s false assumption that people who are at risk of impulsively purchasing items are also at risk of impulsively committing suicide or crime. The court held that, absent evidence establishing a direct link between the two forms of impulsive behavior, the regulation failed to materially further the government’s interests.

Although the regulation failed to satisfy the third prong of the test, the court proceeded to conduct the legal analysis for the final element, which requires the regulation to impose the least intrusive restrictions “necessary to serve” the government’s interests. The court held that § 26820 failed here as well, since California possesses various other regulations and methods for reducing crime and suicide without infringing on commercial speech. Given these considerations, the court held that § 26820 violated the First Amendment and granted the gun owners the injunctive relief they sought.

The Unwavering Influence of the First Amendment

While the precise boundaries of the First Amendment’s free speech protections remain unclear and are always subject to change, this case makes clear that the principles underlying the amendment remain a potent force against legislation that interferes with the free exercise of speech. Judge Nunley’s characterization of the regulation as a “highly paternalistic” piece of legislation is a testament to the power the First Amendment wields across legal and political ideologies, even in an era where the broad scope of the freedom of expression is increasingly questioned.


Bob Egelko, Federal Judge Nominee Troy Nunley Works His Way Up, SFGate (Jan. 2, 2013).

Cal. Penal Code § 26820 (Deering 2018).

Christopher Hsu, Federal Judge Rule Against Gun Ad Law, Jurist (Sept. 13, 2018).

Tracy Rifle & Pistol LLC v. Harris, 2018 U.S. Dist. LEXIS 154926 (E.D. Cal. Sept. 11, 2018).

Veronica Stracqualursi, Obama Calls for ‘Common Sense Gun Safety Laws’ after Florida Shooting, CNN (Feb. 15, 2018).

Photo courtesy of KPCC.