No Preliminary Injunction In California 1st Amendment Gun Store Case

California law prohibits a gun store from having advertising on the building indicating that they have handguns for sale. Obviously, this is a clear violation of the First Amendment rights of the store owners and it was for that reason that they sued California Attorney General Kamala Harris last November.

The judge hearing the case, US District Court Judge Troy L. Nunley, an appointee of President Obama, agreed that the First Amendment rights of the plaintiffs were being violated. Nonetheless, he refused to issue a preliminary injunction as it "would alter the status quo" and he found that this was a greater harm than the damage to the plaintiffs' Constitutional rights.

Say what?

Please tell me what harm there is to the public by allowing a store to put a Team Glock sign or a S&W logo on their front display window.

I'll let the CalGuns Foundation continue the story.

July 16, 2015 (SACRAMENTO, CA) – The State of California’s ban on handgun-related speech by licensed gun dealers likely violates their First Amendment speech rights, held a federal judge in Sacramento earlier this morning. The order, issued by District Court Judge Troy L. Nunley, found that the ban is probably unconstitutional, likely doesn’t materially reduce crime, and likely irreparably harms plaintiffs’ First Amendment right to express themselves the way they wish to. Nonetheless, the judge allowed the restriction to temporarily stand, while the case progresses further.

The gun dealers argued that California Penal Code section 26820—first enacted in 1923—prevents them from displaying any “handgun or imitation handgun, or [a] placard advertising the sale or other transfer thereof” anywhere that can be seen outside their stores and “unconstitutionally prevents firearms dealers from advertising even the most basic commercial information—‘Handguns for Sale’—at their places of business.”

In today’s order, Judge Nunley said that the State “does not meet its burden of showing that the Central Hudson elements, in tandem with the additional First Amendment principles discussed above, are met. Therefore, Plaintiffs raise serious questions going to the merits of their First Amendment challenge to section 26820.

“On balance – based on the arguments and evidence currently before the Court – the Court also finds it is more likely than not that Plaintiffs will succeed on the merits of their First Amendment claim.”

While California Attorney General Kamala Harris had argued that the law was useful in preventing handgun-related crime, the Court held that “there is not adequate evidence produced by the Government showing how, specifically, limiting impulse buys from passersby helps to manage handgun crime and violence….the Government has not shown that the ban is narrowly tailored to achieve the desired objective of managing handgun crime and violence.”

Drawing an inference that most prospective gun store customers would believe the dealers sell handguns in addition to other types of firearms, the Court said that common-sense understanding “perhaps shows the pointlessness of section 26820.”

In spite of the fact that the firearm dealer plaintiffs showed a “likelihood of irreparable harm” to their First Amendment rights, and Judge Nunley’s finding that Harris failed to show how the law actually advanced public safety, the Court said that the public interest is best served by allowing the California Department of Justice to continue enforcing the challenged law during the course of the lawsuit.

“Granting the injunction would alter the status quo by requiring California to alter its regulatory scheme and practices as they pertain to firearms. Therefore, the Court takes the requisite caution in deciding against altering the status quo. With due consideration to the free speech considerations raised by Plaintiffs, which are also of public interest, a cautionary approach that favors denial greater serves the public interest than granting the injunction.”

The gun dealers noted that judge’s arguments for a “cautionary approach” in denying the preliminary injunction are undermined by his conclusion that the law likely isn’t really reducing crime.

In response to today’s ruling, California Association of Federal Firearm Licensees (CAL-FFL) President Brandon Combs said that the firearm dealers are reviewing the decision and considering their options.

“While we are pleased that Judge Nunley agrees with us on the law’s likely unconstitutionality, it’s disappointing that he would allow the State of California to continue enforcing it during the balance of litigation.

“If this were a speech case about abortion providers rather than gun dealers, I doubt very seriously that the Court would have allowed the law to stand while it was being litigated. For that matter, it’s hard to imagine that Attorney General Harris would have bothered defending it.

“We look forward to the plaintiffs’ next steps and will continue to support the case until the law is overturned and our dealers’ First Amendment rights are restored.”

Today’s order in Tracy Rifle and Pistol, LLC, et al. v. Attorney General Kamala Harris, et al. and other case documents can be viewed at calgunsfoundation.org/litigation/trap-v-harris.

The lawsuit is supported by CAL-FFL, California’s firearm industry association, as well as Second Amendment rights groups The Calguns Foundation and Second Amendment Foundation.                         

UPDATE: Professor Eugene Volokh discusses the case at the Washington Post. He advised on the case and thinks the judge got it wrong here.

As we noted in our reply, the “impulse buying” rationale for the law rests thus on a rather far-fetched argument. It imagines a person who is in the grip of some emotion (presumably anger, jealousy or depression). He “otherwise might not enter [a] store” (to quote the state) to buy a handgun — even though he is seized by an emotion that presumably makes him contemplate violence, and even though everyone knows that handguns are commercially available.

That the store is free to have a sign saying “Guns” and has signs depicting rifles or shotguns does not influence him at all. But when he sees the word “handguns” or a picture of a handgun, he “respond[s] on impulse,” and then waits 10 days to get a handgun that he otherwise wouldn’t buy. After those 10 days are up, he then proceeds to commit a handgun crime (or commit suicide). His rage or depression is thus strong enough to last 10 days — but so weak that they wouldn’t drive him to get a handgun, were it not for an ad that specifically depicts or mentions a handgun (as opposed to some other gun).

The court agrees that this sort of argument isn’t reason enough to justify a restriction on speech promoting handguns. I think it likewise can’t justify keeping in place a restriction that the court has recognized likely violates the First Amendment; instead, as is normal for such likely unconstitutional speech restrictions, the restriction should be preliminarily enjoined while the litigation proceeds.

I'm Going To Miss Them

The Gun Dudes are riding off into the sunset. Podcast episode 340 was their last one. I have to admit being a little shocked when they were talking about what they did with guns this week and then all of a sudden slipped in that this was the last podcast. WTF?

I have been listening to them since around Episode 30 or 40. They were part of my Monday morning commute and got my week off to a start with a laugh.

I remember feeling a bit down and somewhat old about just turning 53 that day. Then I started laughing as I listened to them talking about the Misfire Award or Shelton or how to slip a new gun past their (extremely patient) wives. I could feel my mood begin to improve and suddenly I didn't feel so old.

To the Dudes, I say thank you for 340 podcasts. Or some number like that but who's counting. After all, I am older than Stan.

I'm going to miss those guys. I wish them all the best as they ride off into the Utah sunset. Their humor made at least one person's life a little easier.

Video: Ankle Holsters For Concealed Carry

The National Shooting Sports Foundation has just released another one of their excellent training videos. This video features SIG SAUER Academy's Adam Painchaud talking about carrying a pistol or revolver in an ankle holster.

As I have long batted around the idea of doing this given that I drive a lot and often work in places where guns are not welcome though not illegal. While it is not the ideal situation for a primary carry gun, it is good for a backup gun as well. I think it is a viable option when it's a choice between carrying and not carrying due to clothing or the work environment.

Adam mentions both Galco and Alessi holsters for ankle carry. I'm sure there are others if you look. I think he is correct in saying a flimsy holster isn't got to be comfortable. I'd go a step further and say it ain't gonna cut.

One last comment - if you typically wear skinny jeans, you may want to consider other alternatives for carrying your concealed firearm. Just saying.

Nasty Little Fascists Struggling For Relevance

I received an email this morning from Greg Waples of the Center for American Progress alerting me that the Coalition to Stop Gun Violence (sic) was going to be delivering a petition to both the Federal Election Commission and the Internal Revenue Service tomorrow. This petition, ostensibly signed by 11,000 people, demands an immediate investigation into the National Rifle Association for potential violations of campaign finance and tax laws.

Waples is the Campaign Manager for the Guns and Crime Policy team at the Center for American Progress. Prior to that, he worked as a coordinator in the White House Office of Presidential Correspondence. That was his reward for being a regional coordinator for the 2012 Obama reelection campaign.

His emails says:

Just wanted to flag this event happening tomorrow for those in the DC area. CSGV will be delivering 11,000 petition signatures to the FEC calling on them to investigate the National Rifle Association for potential violations of federal law. This is in response to a series of investigative reports and follow up by Yahoo News on potential NRA violations and the subsequent complaint filed by CREW.

CSGV is asking for people to be present for a crowd build at this event. If you are free and in the area tomorrow morning, please consider stopping by! Also, please forward this to any others who might be interested.

 Given the recent successes of the gun prohibitionists attracting crowds, I'm wondering if it will be 15 or will it be 25 people other than staffers who show up.

CREW or Citizens for Responsibility and Ethics in Washington is far from the non-profit, non-partisan watchdog group that they want you to think they are. As the website Crew Exposed makes clear, it is conservatives that are targeted by a ratio of 8-1. This is not surprising given that their chairman is Media Matters' David Brock and their executive director Noah Bookbinder was a high-level staffer for Sen. Patrick Leahy (D-VT) on the Senate Judiciary Committee.

Let's be clear about what CSGV and CREW are seeking. They want two powerful government agencies to do their dirty work in swatting down their political opponents. This is a dangerous game that they are playing. In an open society government agencies shouldn't be called upon to use their power to punish one's political enemies. This is akin to asking the FEC and IRS to play much the same role as the Nazis asked the Sicherheitspolizei and Gestapo. That is to be their state enforcement agency against regime opponents.

How Did My Ancestors' Homeland Fall So Low

Facts. appears to be an Irish YouTube channel. This video by them features three Irish hipsters who are going shooting for the first time. They are shooting trap and sporting clays. It's called, "Irish People Use Guns For First Time".

They seem to have enjoyed themselves. That said, their conclusions are negative. One guy said he's changed his view on guns. Now he just thinks that they are crazy. The only woman piously says that they are designed to cause damage.





If these kids were around in 1916, there would have been no Easter Rising. There would have been no Michael Collins and the Irish Volunteers. It still would have been the United Kingdom of Great Britain and Ireland and not the United Kingdom of Great Britain and Northern Ireland.

This is the end result of being constantly told guns are bad by the education system and the media combined with onerous restrictions on firearms from the government.

"I'm Older Now And It's Very Scary"

WTSP Channel 10 News did a report a couple of days ago about the growth in Florida senior citizens applying for and getting the concealed carry permits. The report notes that over 350,000 permits holders in Florida are over the age of 66.

I'm glad to see these people taking the responsibility for their own self-defense. With regard to the disparity of force argument, most senior citizens would be at a disadvantage against a younger attacker. I'm not a senior citizen (yet) but I would feel at a severe disadvantage if I were attacked by an attacker in his 20s or 30s.

I like the tone of this story. It isn't "this is dangerous for Grandma to have a firearm" but rather an honest report on how senior citizens are taking the initiative to protect themselves. I hope the trainers in Florida and elsewhere recognize this and develop classes aimed directly at this demographic.

I would embed the video but I can't get it not to autoplay. Bummer. Here is the link.



H/T Laura Carno

This Flag Offends Me

I look at this flag and see within it the flag of a nation that oppressed my mother's people from the Middle Ages until the first part of the 20th Century. A nation that forbid primogeniture to my mother's people which, when combined with their callousness, led to over a million dead men, women, and children from starvation. This, while my ancestors' homeland was a net exporter of grain and other foodstuffs. While that nation didn't consider it a genocide, many of my mother's people most certainly did.

It is also the flag of the nation that my father's people fought to gain their freedom. Their independence, if you will.

My mother's people came from County Cavan, Ireland while parts of my father's people were in America before the Revolution.

That nation that oppressed my mother's people and with which my father's people fought in a revolution is of course Great Britain.

The flag to which I refer is the state flag of Hawaii which celebrates its friendship with the British with the Union Jack in its upper left corner.

If the social justice warriors are really serious about getting rid of any symbol that smacks of oppression, I demand then that they get rid of the flag of Hawaii.

It is also the flag of the state where the President was (probably, possibly, potentially) born. Given his goal to out-Nixon, Nixon, I see it doubly as a symbol of oppression.

I won't go so far as to demand that the graves of famous Hawaiians be dug up but that flag has to go.

A Commemorative Day I Could Do Without

July 9th was the UN's International Small Arms Destruction Day. Who knew?

From the UN's press release:

In light of the International Small Arms Destruction Day, Kosovo destroyed over 1,700 small arms and light weapons (SALW) with support from the European Union and the United Nations Development Programme (UNDP) Firearms and Explosives Risk Minimization (FERM) project. The objective was to raise awareness of the dangers of surplus, illegal and insufficiently secured weapons, and to increase the security and safety of people living in Kosovo.

The destruction was organized by the Kosovo Police and took place at Shkritorija, Janjevo. The arms that were destroyed were weapons that the police had confiscated during their crime investigation work.

The Minister of Internal Affairs of Kosovo, Mr. Skender Hyseni, and UNDP Deputy Resident Representative, Ms. Alessandra Roccasalvo were joined by the Deputy General Director of the Kosovo Police, Naim Rexha and Mr. Asllan Uka on a panel.

This destruction is an important element of Kosovo’s comprehensive Small Arms and Light Weapons Control Programme because it is an effective method of reducing the number of illegal weapons in the market, and reducing the potential supply of such weapons in the future. This destruction ensures that SALW will not find their way back into the illicit market and can thus build confidence in overall efforts to prevent, combat, and eradicate their illicit trade. It also contributes to decreasing the number of people who will face the similar hardships to Asllan Uka in the future.

The destruction of SALW was supported by the European Union, through the COUNCIL DECISION 2013/730/CFSP, dated 9 December 2013, in Support of SEESAC Disarmament and Arms Control Activities in South East Europe (EUSAC), in the framework of the EU Strategy to Combat the Illicit Accumulation and Trafficking of SALW and their Ammunition.

It seems the State Department stopped publicizing the day back in 2010 when Hillary Clinton was still Secretary of State. Back then, the State Department boasted that the United States had spent over $130 million to support the destruction of 1.4 million small arms and light weapons, 80,000 tons of munitions, and 32,000 ManPADS.

I'll give them the ManPADS. However, doesn't it make more economic sense to reuse some of that 80,000 tons of ammunition? I will acknowledge that some will be artillery shells but a lot of it probably was 7.62x39 ammo which could have either gone to our allies who use that round or be imported here as surplus ammo. Moreover, I would think many of the destroyed small arms could have been imported as parts kits.

Of course it made more economic sense but when has economic sense mattered to the United Nations or, for that matter, to the Obama Administration. It is the agenda and not the cost that matters.