The Supreme Court continued its recent pattern on Second Amendment cases in its orders list on Monday; silence on cases dealing with “assault weapon” and “large capacity” magazine bans that have been listed for its weekly conference since last December, and turning away more recent cert petitions dealing with Second Amendment issues beyond those at the heart of the Snope and Ocean State Tactical litigation.
This week it was B&L Productions, et all v. Newsom, et al that got the axe. As the petitioners outlined in their cert request to SCOTUS:
California enacted a trio of laws banning “sales” of firearms and ammunition on any state-owned property. The purpose and effect of these laws is to ban gun shows—and the speech that takes place at those events—at the fairgrounds operated by California’s District Agricultural Associations and at other public forums.
More than twenty-five years ago, a local government in California sought to ban “offers for sale” of firearms at gun shows held at county-owned fairgrounds. The Ninth Circuit held that the policy violated the First Amendment under the commercial speech doctrine. Nordyke v. Santa Clara Cnty., 110 F.3d 707 (9th Cir.1997). Fast-forward to today, the state of California, out of legislative animus, has resuscitated censorship of gun shows. While an “offer for sale” is still protected commercial speech under Ninth Circuit precedent, that same court has now found that an “acceptance” is not protected speech.
Under New York State Pistol & Rifle Association v. Bruen, 597 U.S. 1 (2022), the government must prove that a ban on Second Amendment commerce is part of an enduring historical tradition. Rejecting Petitioners’Second Amendment claims, the Ninth Circuit abandoned the straightforward test set forth in Bruen and instead applied an interest-balancing “meaningful constraint” test.
B&L Productions isn’t (or wasn’t) just a Second Amendment case. Instead, the Court was asked to resolve a couple of questions around the First Amendment rights of gun buyers and sellers in addition to a question related to our right to keep and bear arms.
1. Whether the distinction between pure speech and commercial is obsolete, with the First Amendment protecting all lawful speech in the same manner and, if not, whether the current iteration of the “commercial speech doctrine” tolerates a categorical ban on any speech or expressive conduct constituting an acceptance in contract formation for lawful sales oflawful products.
2. Whether the Ninth Circuit’s decision directly conflicts with this Court’s decision in Bruen by applying a “meaningful constraint” test to a Second Amendment claim asserting a right to engage in lawful commerce in firearms and ammunition on public property.
3. Whether an allegation that a law is motivated byanimus can support a claim under the Equal Protection Clause when the law results in the denial of access to public forums for disfavored groups advocating disfavored rights?
As a result of the Supreme Court’s inaction, the screwy law in California that allows guns to be offered for sale on state-owned property while prohibiting an offer from being accepted will remain intact for the foreseeable future.
There is one other legal vehicle that could provide gun sellers and gun show promoters some relief, however. As the plaintiffs noted in their cert petition:
Alternatively, this Court already has on its merits docket a case that takes up the legal implications of commercial speech rights associated with exercising Second Amendment rights. Smith & Wesson Brands v. Estados Unidos Mexicanos, Case No. 23-1141(docketed April 22, 2024). The underlying controversy in that case can be restated as whether a manufacturer can be held liable in tort for merely marketing its lawful products. To the extent this Court chooses to flesh out the Second Amendment’s ancillary commerce rights necessary to exercise the “right to keep and bear arms”—this Court can hold this petition and then issue appropriate instructions in this case upon disposition of the Smith & Wesson case.
Unfortunately SCOTUS chose not to hold on to B&L Productions, but depending on what the Court has to say in Smith & Wesson there may very well be grounds for a new challenge to the speech codes enacted by the California legislature. That won’t be either quick or easy, however, and it could be years before the justices on the Supreme Court have the opportunity to provide the relief that California gun buyers and sellers deserve.
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