9th Circuit Rules Challenge to California AB 2571 Can Proceed

In June 2022 the Democrats in the California legislature passed an insane piece of Legislation, AB 2571, which imposed massive fines for any communication about the shooting sports or firearms which might be “attractive to minors”. This poorly-drafted and blatantly unconstitutional piece of legislation was happily signed by California Governor Gavin Newsom. As predicted, AB 2571 had an immediate and devastating effect on California youth firearms training and sports programs.

READ Ninth Circuit AB 2571 Case Order and Opinion HERE »

Thankfully, AB 2571 (as codified in California Business and Professions Code §22949.80) has been challenged in the courts. We are pleased to note that the Federal Ninth Circuit Court of Appeals has examined AB 2571 and found that it is likely unconstitutional in many ways. The 9th Circuit then sent the case back to the District Court where the plaintiffs will pursue an injunction to block application of this horrendous, ill-conceived statute. The Ninth Circuit specifically held that AB 2571 attacked constitutionally-protected commercial speech:

“California’s advertising restriction likely imposes an unconstitutional burden on protected speech. The state has made no showing that broadly prohibiting certain truthful firearm-related advertising is sufficiently tailored to significantly advance the state’s goals of preventing gun violence and unlawful firearm possession among minors. Because California fails to satisfy its burden to justify the proposed speech restriction, [Plaintiff] is likely to prevail on the merits of its First Amendment claim.”

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“California has many tools to address unlawful firearm use and violence among the state’s youth. But it cannot ban truthful ads about lawful firearm use among adults and minors unless it can show that such an intrusion into the First Amendment will significantly further the state’s interest in curtailing unlawful and violent use of firearms by minors. But given that California allows minor[s] to use firearms under adult supervision for hunting, shooting, and other lawful activities, California’s law does not significantly advance its purported goals and is more extensive than necessary. In sum, we hold that § 22949.80 is likely unconstitutional under the First Amendment, and we thus REVERSE the district court’s denial of a preliminary injunction and REMAND for further proceedings consistent with this opinion.”
— U.S. Ninth Circuit Court of Appeals

Here is a report from the California Rifle & Pistol Association (CRPA):

Big Win on AB 2571 Case
The Ninth Circuit Court of Appeals issued a decision [September 12, 2023] in the CRPA’s challenge to AB 2571, the law that prohibited the marketing of firearms and related products by members of the firearm industry to minors in California.

The law was signed last year as an “emergency” piece of legislation, and it completely stopped youth shooting sports, youth shooting publications, hunting, and shooting team recruitment in California. It affected thousands of kids and the safe and responsible youth shooting programs they participate in and benefit from. AB 2571 was quickly amended to try to mitigate some of the most obvious impacts on youth shooting sports programs, but that amendment did not make the law any less unconstitutional. And, in many ways, it made the law more confusing for those working with youth shooters.

CRPA, Second Amendment Foundation, Junior Sports Magazine, California Youth Shooting Sports Association, Redlands California Youth Clay Shooting Sports, Gun Owners of California, and The CRPA Foundation joined together to challenge the unconstitutional law in court. Plaintiffs quickly moved for an injunction against the law so that programs, sponsorships, and youth working on their marksmanship skills could continue while the case was litigated. The lower court denied our request for a preliminary injunction, so the plaintiffs appealed that decision to the Ninth Circuit Court of Appeals. Oral arguments were held before a three-judge panel in June of 2023. Today, the court ruled that the District Court’s denial of plaintiffs’ motion for preliminary injunction was wrong and reversed the lower court’s decision.

The court noted that “because California permits minors under supervision to possess and use firearms for hunting and other lawful activities, Section 22949.80 facially regulates speech that concerns lawful activity and is not misleading.” The court also held that the law “does not directly and materially advance California’s substantial interests in reducing gun violence and the unlawful use of firearms by minors. There was no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad.” Finally, the court held that the law was “more extensive than necessary because it swept in truthful ads about lawful use of firearms for adults and minors alike.”

Judge VanDyke wrote separately to emphasize that laws like section 22949.80, which attempt to use the coercive power of the state to eliminate a viewpoint from public discourse, deserve strict scrutiny.

“Although this does not end the case, this is the outcome we were hoping for”, said Chuck Michel, CRPA President/General Counsel. “Newsom’s efforts to eliminate youth shooting activities, hunting, and the next generation of Second Amendment advocates … has been stopped again. This is another example of legislative overreach and the politicians’ willingness to trample on constitutional rights.”

The Ninth Circuit panel reversed the denial of the preliminary injunction and sent the issue back down to the district court for further proceedings consistent with its decision. For all of those youth shooting programs out there, this means keep doing what you are doing for now. It takes time for appellate decisions to become final, and the lower court must still issue a final decision on the Plaintiffs’ motion for preliminary injunction.

NOTE: Organizations affected by this law should continue operating their programs the same way — as if AB 2571 is in place. Watch for more information on the ruling from the District Court soon.