(CN) — The Ninth Circuit Court of Appeals on Tuesday upheld a ban on firearm sales at gun shows held on state-owned property, including county fairgrounds.
In their 25-page ruling, the three-judge panel found that a state law, SB 915, which took effect Jan. 1 2023, was not subject to First Amendment scrutiny, because it did not restrict expressive conduct. The panel also found that the Second Amendment does not cover such a narrow sales ban, when guns are still easily purchased elsewhere.
State Senator Dave Min, the author of SB 915, said in a statement that today's ruling was a "step in the right direction."
"While I am pleased to see that the Ninth Circuit agrees, I am saddened by the fact that more gun shows took place over the last six months in our state and in Orange County, meaning that many thousands more guns poured into our communities in laxly regulated circumstances," Min said.
C. D. Michel, president of the California Rifle & Pistol Association (or CPRA), called the ruling "extremely disappointing," in a statement, adding: "The three-judge panel clearly did not understand the connection between First Amendment and Second Amendment rights. CRPA will continue to protect the despised gun culture and fight back against an overreaching government that seeks to limit disfavored fundamental rights and discriminate against certain groups of people on state property. CRPA looks forward to seeing this misguided decision reversed in short order.”
Many gun laws, including those that mandate background checks and waiting periods before completing the purchase of a firearm, include exemptions for private sales. This has often been referred to, by Democrats, as the "gun show" loophole, since individuals can sell firearms at guns shows, though so can brick-and-mortar stores.
Prior to SB 915, California allowed sales to be initiated at gun shows held on state property but not completed. In practice, that meant that sellers could run the buyer's credit card, but the buyer had to wait 10 days, and complete a background check, before picking the gun up somewhere else. SB 915 took things a step further, and banned the initiation of such sales.
B+L Productions operates a circuit of popular and long-held gun shows called "Crossroads of the West." B+L challenged SB 915, suing in federal court in both San Diego and Orange Counties, having put on gun shows at county fairgrounds in both jurisdictions. A U.S. District judge in San Diego dismissed the suit in March 2023; in October 2023, a different federal judge issued a preliminary injunction, blocking the state from enforcing the law.
Both B+L and the state of California appealed. During oral arguments earlier this year, B+L Productions' attorney Anna Barvir argued that SB 915 violated the Second Amendment, telling the appellate panel, "You can’t keep and bear arms if you can’t get them."
But the judges appeared skeptical of the argument, pointing out that guns were still readily available at brick-and-mortar shops near the fairgrounds.
Barvir had also suggested that gun shows were a venue for free speech, and that banning gun show sales was a de facto ban on gun shows themselves.
"Gun shows without the sale of guns are not a thing," she said. "That is not the business model of my client. Gun shows allow commerce in arms."
The panel's sole Republican-appointed judge, Richard Clifton, was blunt in his assessment of that argument, telling her, "Making an offer, that’s commercial speech. Accepting an offer, I don't know. I haven’t heard commercial speech discussed in those terms."
In their ruling, authored by Clifton, a George W. Bush appointee, the judges found that the gun show sales bans "solely restrict non-expressive conduct — contracting for the sale of firearms," and are therefore "not subject to First Amendment scrutiny." They agreed with the California attorney that the swiping of a credit card was the "acceptance" of an offer, and not the offer itself.
They also found that the Second Amendment "does not cover B&L’s proposed conduct — namely, contracting for the sale of firearms and ammunition on state property." Clifton added: "B&L made no allegation that a ban on sales on state property would impair a single individual from keeping and bearing firearm."
The panel was rounded out by Sidney Thomas, a Bill Clinton appointee, and Roopali Desai, a Joe Biden appointee.
“Guns should not be sold on property owned by the state, it is that simple,” said California Attorney General Rob Bonta, in a written statement. “Sales of illegal firearms and ammunition, and sales of firearms and ammunition to prohibited persons, have happened on state property and these laws will further help to prevent that going forward.”
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