Ninth Circuit Stops CA Ban On Gun Marketing, But There's a Problem

P. Gardner Goldsmith | September 18, 2023
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In a move that harkens back to the old consumer saying, “not as satisfying as advertised,” the Ninth US Circuit Court of Appeals Thursday dealt a major blow to California’s gun-grab political forces, while offering merely a pyrrhic victory to advocates of free speech and the right to keep and bear arms.

How can these two seemingly disparate facts coexist?

Bearing Arms’ Cam Edwards offers a succinct overview of the situation and the Ninth Circuit decision, first noting:

“Writing for the majority, Judge Kenneth Lee ruled that the law forbidding marketing and advertising firearms that ‘reasonably appear to be attractive to minors’ is likely to infringe on the First Amendment, given that the statute is so broadly written that advertisements aimed at adults who can lawfully purchase a firearm would be swept up in its provisions.”

The California gun-grabbing politicians and their attorneys based much of their so-called justification for “Subsection 22949.80 of the California Code”, aka, the so-called “Marketing Firearms to Minors” statute, on the already extant judicial and legislative fantasy that has seen both the feds and states claim a power to control what they categorize as “commercial speech.”

Which, in turn, goes back to a terrible – and terribly important -- Supreme Court ruling in the 1942 case called “Valentine v Chrestensen.” In a unanimous decision, the FDR allies on the court made numerous conceited errors by, first, not acknowledging the actual wording of the First Amendment (which prohibits only Congress from infringing on the right of free speech), and, second, not noting the speech protection enshrined in the New York State Constitution. Since the “Valentine” case centered on whether the government of New York City could prohibit a man from handing out fliers for his business, and the NY State Constitution prohibited the state and its sub-governments from infringing on the right of speech, anyone with a sense of logic and fairness easily could determine that the move by NYC was wrong.

But, of course, the FDR pals on the 1942 Supreme Court claimed it was perfectly fine to suppress what the government called “commercial speech.”

Related: Thousands of NJ Residents Disobey Fed Court & State and Don't Turn In Their Ammo Magazines | MRCTV

And, regardless of the logical pit of doom that creates – forcing even fiction writers who sell their books (i.e. who engage in commerce, and even promotion of their work) to stare into the abyss – the fatuous political players who seem ever-comfortable in shaving away our liberty have adopted the "commercial speech" canard.

Which brings us back to Thursday, and this fake victory for speech and gun rights advocates. Take a look at this portion of the decision:

“While California has a substantial interest in reducing gun violence and unlawful use of firearms by minors, its law does not ‘directly’ and ‘materially’ further either goal. California cannot straitjacket the First Amendment by, on the one hand, allowing minors to possess and use firearms and then, on the other hand, banning truthful advertisements about that lawful use of firearms. There is no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad. Nor has the state produced any evidence that truthful ads about lawful uses of guns—like an ad about hunting rifles in Junior Sports Magazines’ Junior Shooters—encourage illegal or violent gun use among minors. Simply put, California cannot lean on gossamers of speculation to weave an evidence-free narrative that its law curbing the First Amendment ‘significantly’ decreases unlawful gun use among minors. The First Amendment demands more than good intentions and wishful thinking to warrant the government’s muzzling of speech.”

The majority ruled not that speech suppression (i.e. banning ads for guns that the politicians claim might be “targeted at” people who are underage – however the government wants to interpret THAT) was verboten in California, but that there wasn’t a sufficient “reason” to block any such ads.

Note that, in the above quote, the court claims that the state as a “substantial interest” in “reducing gun violence” but that this current suppression of speech does not “directly” and “materially” support that goal.

What if the judges of the Ninth Circuit thought that it did? There’s a big, dark, problem in that, and it is essential that more people recognize it.

At the heart of this mistaken approach to rights is the widespread and long-standing fallacy that there can be a “compelling state interest” in some sought-for government goal.

But the term “compelling state interest” is a logical and philosophical fraud, a euphemism that’s always open to wider interpretation by those who occupy government offices. And it’s always open to wider interpretation because there is NO SUCH THING as a “compelling state interest." States do not have “interests.”

Only human beings have “interests,” because each of us has Natural Rights. States are not human beings. As such, they have no magical “gestalt” interests at all. Those who run the offices of the state at various times spew out what they say are “interests,” often purporting that these are the “interests” of the people, when, of course, each person, himself, has his own interests and rights that are being either overridden by the state or amplified at the expense of someone else’s interests and rights.

Related: CA Assembly Passes Newsom-Favored, Tyranny-Flavored Call For Constitutional Convention To Ban Guns | MRCTV

Or, as the great Nineteenth Century economist and philosopher Frederic Bastiat said:

“The state is that great fiction by which everyone tries to live off of everyone else.”

This distinction between the state and real people not only is important, it shows us an assumptive political and judicial sabotaging of our rights that is much more widespread than just the halls of the Ninth Circuit. As a result, it is important not to candy-coat this decision as a victory for free speech. The ruling doesn’t question the concept that, at some other time, government agents and judges might agree that there IS some magical “compelling state interest” that they make up, and then, goodbye rights.

The real interest is in the rights of people to be left alone, free from coercion from others, and, right now, the others who most often want to coerce people are those who occupy the offices of government. Thus, even with this ruling that puts an end to the California prohibition on “gun ads that might attract kids,” we can learn more. We can see that the state is not a person, has no rights, and has no “interests” at all.

We can celebrate the minor win, but acknowledge that, hidden within the ruling, the Ninth Circuit reinforced a fallacy that stands in absolute contradistinction from our rights.

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