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Ninth Circuit:
Bans on Firearm Sales at Fairgrounds Are Constitutional
Opinion Says Laws Do Not Implicate First or Second Amendment Protections
By Kimber Cooley, Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that three recently enacted statutes prohibiting the sale of firearms on state-owned fairgrounds and other property do not violate the First or Second Amendments of the U.S. Constitution as they restrict only the non-expressive conduct of contracting for the sale of guns and do not meaningfully constrain any individual’s ability to keep and bear arms.
The decision comes in two actions , consolidated on appeal, brought by B & L Productions, Inc.—which runs gun shows at state fairs—and other interested parties, against the state and local officials charged with enforcing the laws.
Senior Circuit Judge Richard R. Clifton authored the opinion, affirming the dismissal of an action by District Court Judge Anthony J. Battaglia of the Southern District of California and vacating the grant of a preliminary injunction against the state actors by District Court Judge John W. Holcomb of the Central District of California.
Circuit Judges Holly A. Thomas and Roopali H. Desai joined in the opinion.
Gun Shows
Plaintiff B&L operates its shows under the name “Crossroads of the West” and offers firearms and other goods for sale and lectures on gun-related topics.
The company hosts gun shows at the Del Mar Fairgrounds in San Diego County and the Orange County Fair & Event Center, both owned by California. Each is operated by a local district agricultural association (“DDA”).
On Oct. 4, 2021, B&L and the other plaintiffs filed suit in the Southern District against Gov. Gavin Newsom, Attorney General Ron Bonta, and Secretary of California Department of Food & Agriculture Karen Ross, the 22nd DAA, San Diego District Attorney Summer Stephan and then-San Diego County Counsel Lonnie J. Eldridge, asserting that a recently enacted bill infringes upon their First and Fourteenth Amendment rights. It added reference to the Second Amendment on the heels of the U.S. Supreme Court’s June 23, 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen declaring that amendment to be abridged by a New York law requiring demonstration of a “special need” to obtain a permit to carry a concealed weapon.
The plaintiffs filed suit again on Aug. 12, 2022, this time against Newsom, Bonta, Ross, the 32nd DAA, and Orange County District Attorney Todd Spitzer in the Central District, challenging the enforceability of two additional bills that had been enacted.
Commercial Speech
Noting that what precise conduct is being targeted by the legislation is a “core point of contention,” Clifton explained that B & L asserts that the statutes regulate all “commercial speech associated with the sale of an otherwise lawful product” and the defendants contend that the bills regulate only “the act of exchanging money for a gun.”
Weighing in, the judge said:
“The Challenged Statutes simply prohibit ‘contract[ing] for...the sale of any firearm or ammunition’ on state property. On its face, that language solely regulates the moment at which a binding contract is formally consummated. The statutes therefore do not prohibit offers to sell firearms….”
He continued:
“Because a contract can be consummated prior to delivery of the purchased product, the regulated conduct is likewise not ‘the act of exchanging money for a gun.’ As acceptance is what determines when a contract becomes binding, the Challenged Statutes prohibit accepting an offer to sell firearms or ammunition on state property.”
Based on this statement of the restricted conduct, he opined that “[t]he Challenged Statutes’ limited scope simplifies our inquiry, as acceptance of an offer is not entitled to First Amendment protection.”
Indirect Impact
The jurist was unpersuaded that the bans indirectly implicate the First Amendment by jeopardizing the pro-gun speech that occurs at gun shows, as the gun show operators will no longer have a financial incentive to host lectures and classes on issues of interest to gun owners.
Clifton noted that “[e]ven assuming B&L’s allegations are accurate, the indirect economic impacts it alleges do not implicate the First Amendment” as regulations that do not directly regulate expressive activity are only scrutinized if they single out those involved in expressive activity.
In the present case, he reasoned:
“Because the Challenged Statutes…apply to all vendors, including those who may wish to sell guns for purely financial reasons or other purposes, they do not have the effect of ‘singling out’ those gun show participants who wish to engage in expressive activity. In other words, the impact of the Challenged Statutes does not differ based on whether a party is engaged in such activity.”
He continued:
“Even if the ultimate result of the Challenged Statutes is that gun shows on state property are no longer viable, the gun show vendors who are not engaged in pro-gun expression—both those who sell guns for non-expressive reasons and those who sell things like snacks and memorabilia—would be just as impacted as those who are.”
Clifton pointed out that the high court in Bruen held that a litigant invoking the Second Amendment must first establish that the Second Amendment’s plain text covers the challenged action. Finding that threshold issue to be unmet in the present cases, he reasoned:
“The plain text of the Second Amendment directly protects one thing—the right to ‘keep and bear’ firearms…. On its face, that language says nothing about commerce, let alone firearm sales on state property.”
He acknowledged that courts have held that “unless the right to acquire firearms receives some Second Amendment protection, the right to keep and bear firearms would be meaningless,” but said:
“[W]e have held that a ban on all sales of a certain type of gun or ammunition in a region generally implicates the Second Amendment, as such a ban meaningfully constrains the right to keep and bear that firearm or ammunition….But a minor constraint on the precise locations within a geographic area where one can acquire firearms does not.”
Noting the presence of other firearm dealers in the area, he concluded that “[m]erely eliminating one environment where individuals may purchase guns does not constitute a meaningful constraint on Second Amendment rights when they can acquire the same firearms down the street.”
Clifton commented that the gun show vendors are often the same licensed sellers that have stores in the area and sell firearms over the Internet. Under those circumstances, he remarked:
“Given that offers are not proscribed, attendees of gun shows in California can peruse such offers, leave the premises, and immediately order their desired goods from the vendor. Such a system does not meaningfully delay the delivery of purchased firearms….”
He declared:
“The only thing attendees can no longer do is agree to buy firearms while physically present at the gun show. Nothing in the Second Amendment’s text provides a right to the contrary.”
The case is B & L Productions, Inc. v. Newsom, 23-55431.
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Pictured above is a display of firearms—now banned at fairgrounds in California. The Ninth U.S. Circuit Court of Appeals yesterday upheld the constitutionality of the prohibition.
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