Censoring Gun Owners

In order to restrict the use of citizens’ Second Amendment rights, California targeted the First Amendment.

by
posted on November 26, 2022
gun graphic with Censored
bortonia/iStock

Many have noted that the Second Amendment literally protects all of our other rights; after all, if criminals or tyrants are able to take your life or liberty with little to no resistance—especially armed resistance—your right to free speech, your right to due process under the law and more are unlikely to be respected. Unless you, or our heroes in blue charged with protecting the innocent, are able to protect our most basic rights, all of our rights are in danger.

But those opposed to our right to keep and bear arms ignore the fact that the Second Amendment acts as a bulwark for all of our freedoms, protecting our other rights from legislatures, in courts and in public opinion.

California’s legislature and governor just unwittingly showed us that, indeed, the Second Amendment is a cornerstone of American liberty. Last June, a majority of California’s legislators passed, and Gov. Gavin Newsom (D) signed, AB 2571, a bill titled “Firearms: advertising to minors.” This legislation, now a law, is a direct assault on the First and Second Amendment rights of residents of California. But, thanks in large part to this civil-liberties association—its members, legal team and resources—the state soon saw that they were going to lose constitutional challenges in the courts; so, in late September, they amended the law with a public-safety trailer bill filed as AB 160. Budget trailer bills are not supposed to be used for policy, but authoritarian legislatures like the one in California often use them this way to avoid open debate and discussion.

What is still on the books in California, however, remains an egregious attack on our First and Second Amendment rights. Here is what happened. It is worth going through the details, as this fight isn’t over and is likely to, in one form or another, come up again.

First, They Hastily Passed Anti-Freedom Legislation
Without much debate, the California Assembly passed, and Gov. Newsom signed, AB 2571—a list of First Amendment infringements on firearm ads, gun competitions and more that might be construed as influencing minors. At the time, Newsom said, “Those backing this industry can no longer market to our children.”

Commercial speech or advertising is generally protected under the First Amendment to the Constitution of the United States. Existing laws and regulations, however, have been used to restrict the content and placement of advertising and promotional marketing of many commercial products, like alcohol, cannabis and tobacco, to protect minors—which gun-grabbers saw as an opening to go after firearm-related speech.

“This bill would prohibit a firearm industry member, as defined, from advertising or marketing any firearm-related product, as defined, in a manner that is designed, intended, or reasonably appears to be attractive to minors,” AB 2571 stated. “The bill would also prohibit a firearm industry member from using, disclosing, or compiling a minor’s personal information if it is intended to market or advertise a firearm to that minor, as specified.”

The new law imposed “a civil penalty of up to $25,000 for each violation of these provisions and would authorize a person harmed by a violation to bring suit to recover any damages suffered, as specified.” Furthermore, each copy or republication of marketing or advertising prohibited by these vague provisions would be a separate violation.

This California legislation had national repercussions. It prompted many firearms-related activities and websites to go silent to avoid $25,000 fines per instance. To name a few examples, the California Grizzlies Junior Highpower Rifle Team, which won the Infantry Trophy at the U.S. National Matches at Camp Perry, Ohio, took their website offline. The NRA’s website and the digital editions of its publications installed an “I confirm that I am at least 18 years of age” barrier before allowing visitors to view content. Shooting ranges throughout California posted signs informing visitors that no one under the age of 18 was allowed on the property. Even activities from the California Department of Fish and Game had likely become illegal.

These bans on speech were clearly unconstitutional.

“Commercial speech, as much as Gov. Newsom and the California State legislature may find it distasteful of their political views, is still protected speech,” said Mark Olivia, managing director of public affairs for the National Shooting Sports Foundation (NSSF). “Unless a speech is a call to violence or encouraging some kind of violent or criminal act, it is still protected by the First Amendment. So what these lawmakers have done is to unconstitutionally suppress commercial free speech.”

Gov.Gavin Newsom
When California’s legislators passed, and Gov.Gavin Newsom (D) (above) signed, legislation to take away First Amendment rights of gun owners, a legal battle began that is still ongoing.


Next, The N R A Responded
In early August, the NRA, with Safari Club International, the U.S. Sportsman’s Alliance and others, filed a lawsuit tagged as So Cal Top Guns v. Bonta.

“California has for years attempted to unconstitutionally regulate firearm industry members’ First Amendment right to engage in truthful marketing and advertising concerning lawful products and services,” the lawsuit said. “This action is the next chapter in that ongoing saga.”

The suit also said AB 2571 “has the practical effect of wiping out … the promotion and preservation of the nation’s historical tradition of firearms ownership and hunting heritage in California through the passing down of pro-Second Amendment attitudes and traditions to future generations.”

As an analysis by the NRA pointed out, a major concern with the bill was that it vaguely and broadly prohibits any advertisement for firearms or their use that “appears to be appealing to minors.”

There were several hazy factors cited in the bill as indicators that something might appeal to minors, such as colors or caricatures that minors might find attractive or advertisements starring minors. Therefore, any firearm-safety, hunter-education or shooting-sports program aimed at youth could not be promoted in California without potentially violating the law.

The chief enforcement officer for the California Department of Fish and Wildlife did send out a letter saying this didn’t apply to hunter-safety instructors acting on behalf of the department, but others disagreed with this legal assessment. This is important, as the California Department of Fish and Wildlife is officially supposed to “create, support and promote marketing and outreach materials that more fully embrace the shooting sports—archery, target shooting, rifle, shotgun and pistol ranges, youth shooting leagues and activities—as worthwhile, important and valuable activities linked to hunting and hunter recruitment, retention and reactivation starting in July 2020.”

Due to AB 2571, this objective was put in jeopardy, which is something the California Assembly failed to recognize when it “urgently” passed the bill, rife with its contradictions and unconstitutional dilemmas.

At the forefront were the environmental consequences. A few years ago, California wildlife officials started calling for hunters to come back to the state, as they saw firsthand the detrimental impact of the shortage of hunting licenses on their budgets and the money available for conservation efforts.

Four decades ago, California had 764,000 licensed hunters. As of 2022, only 290,000 Californians possessed hunting licenses. That marks a 63% decline; today, less than 1% of the state’s population is actively hunting—the lowest per-capita of any U.S. state. The decrease can be largely attributed to the state’s aggressive anti-gun policies and the vast costs associated with the licensing process.

While the California Department of Fish and Wildlife recognized this as a glaring cause for concern, the state’s legislators pulled the rug out from under them anyway; as a result, the financial framework that pays for much of the conservation of the state’s wildlife and habitats faces enormous losses.

“Hunters are incredibly critical to conservation efforts; the money from these licenses goes back to support conservation on all fronts. And the money that gets distributed is based on license sales in the state,” said Daniel Reid, western director of NRA-ILA. “This could have a devastating impact in keeping the wildlife balance we need.”

Further, Reid observed, the law diminished the opportunity for youth to participate in advertised classes on outdoor exploration so they can learn fundamental life skills, such as being able to ethically hunt, harvest game for consumption and become responsible stewards of the land.

And then there was the glaringly inconvenient truth that such legislation, built upon the foundation of a flawed political agenda, could have other widespread ramifications for today’s youth. The ambiguously worded law not only prohibited advertising firearms to minors, but also potentially chastened any form of the promotion of guns to youth. It threatened the very existence of organized youth shooting; this included high school clay-target teams and leagues, activist organizations, Second Amendment publications and the right of California’s youth to engage in a truly American sport and pastime.

The sweeping law applied not only to “commercial speech” aimed at minors, but hindered commercial speech aimed at adults, as well as speech promoting activities that are perfectly lawful to engage in, including by minors in California.

“The law references an advertisement that is attractive to minors. Well, what is the definition of attractive? What about if an ad is directed to adults, but a 17-year-old sees the ad and it makes them interested in the shooting sports?” Oliva asked.

As the NRA lawsuit was filed, across California, the law was already dashing dreams. Young Californians who once harbored high hopes of becoming skeet champions and making Team USA in a not-too-distant Olympics already saw their chance to excel drastically diminished.

“The immediate effect of this is that we are seeing youth clay shoots and league already shutting down over concerns that this law will target them. Again, that would be a $25,000 fine for every instance,” said Oliva. “So, you have 10 kids out there shooting, that is $250,000. We are already seeing that manufacturers are making sure not to target any advertising to anyone in California.”

Indeed, many hunting and shooting sports organizations across the country’s most-populous state quickly determined that the law put them at grave peril. The likes of the California State High School Clay Target League closed, the Scholastic Shooting Sports Foundation paused all communications inside California and the San Diego County Wildlife Federation pulled the plug on its National Hunting and Fishing Day event.

“The San Diego County Wildlife Federation would fall under numerous categories of the code when it comes to the event since our goal was to attract families, we would be charging an entrance fee to attend and firearms would be present which may be attractive to minors to include the CRPA’s BB-gun range and other possible shooting booths,” Gary F. Brennan, president of the group, wrote in a letter announcing the cancelation. “Other vendors would be offering firearms and firearms-related items. Our raffles would include many prohibited items listed in the law.”

Faced with the threat of a $25,000 fine for “any and each instance” of advertising a “firearms-related product” that could present guns in an “appealing” light “to minors,” organizations found themselves in a legal game none could afford to play.

“This is having a chilling effect on outreach, and we all know how important it is for the next generation to learn how to utilize a firearm appropriately,” said Reid. “One of the fastest-growing sports is the trap-and-skeet teams at high schools. Now, these groups are nervous. If you can’t do a Google search, or you can’t get an email blast or see a listing in a magazine that’s coming to your house, how do you find these opportunities and participate?”

Moreover, if history tells us anything, what happens in California doesn’t always stay in California.

“Much of the legislation that goes after Second Amendment rights tends to originate in California. It is often called the petri dish of gun control,” said Reid. “Every year, we have bills introduced with concepts that don’t exist anywhere else. And sometimes, those concepts pick up steam, and there is an attack on the culture of the Second Amendment in other places.”

Several laws enacted over the past decade in what was once the Golden State don’t target criminal misuse of firearms, but punish law-abiding citizens who use them responsibly, said Reid. Hunting is a lawful activity; thus, AB 2571 purely targeted a perfectly legal sport and its participants.

Therefore, it should come as no surprise that the legislation will neither mitigate nor stop firearm-related crimes.

“The criminals are still out there committing more crimes,” said Reid. “And so, despite the hundreds of gun laws California has on the books, criminals are simply ignoring them.”

California Saw They Would Lose
With court filings noting clear First and Second Amendment infringements filed, the state’s anti-gun legislators saw they would soon lose decisions—and such decisions would create precedents. They avoided this by quickly amending the legislation with AB 160.

As this was being written, the legislation still said, “A firearm industry member shall not advertise, market, or arrange for placement of an advertising or marketing communication offering or promoting any firearm-related product in a manner that is designed, intended, or reasonably appears to be attractive to minors.”

But they tweaked the “attractive to minors” clause. First, they say, “In determining whether marketing or advertising of a firearm-related product is attractive to minors … a court shall consider the totality of the circumstances, including, but not limited to, whether the marketing or advertising:

(A) Uses caricatures that reasonably appear to be minors or cartoon characters to promote firearm-related products.

(B) Offers brand name merchandise for minors, including, but not limited to, hats, t-shirts, or other clothing, or toys, games, or stuffed animals, that promotes a firearm industry member or firearm-related product.

(C) Offers firearm-related products in sizes, colors, or designs that are specifically designed to be used by, or appeal to, minors.

(D) Is part of a marketing or advertising campaign designed with the intent to appeal to minors.

(E) Uses images or depictions of minors in advertising and marketing materials to depict the use of firearm-related products.

(F) Is placed in a publication created for the purpose of reaching an audience that is predominately composed of minors and not intended for a more general audience composed of adults.

(3) This subdivision does not apply to a communication offering or promoting any firearm safety program, hunting safety or promotional program, firearm instructional course, sport shooting event or competition, or any similar program, course, or event, nor does it apply to a communication offering or promoting membership in any organization, or promotion of lawful hunting activity, including, but not limited to, any fundraising event, youth hunting program, or outdoor camp.

According to this law, the NRA’s Eddie Eagle youth gun-safety program is illegal, as are other tools used to teach actual gun safety. The state is clearly still attempting to reduce the number of young hunters and shooting-sports competitors. To these anti-Second Amendment legislators, this is a culture war, and their long game is to wipe the use of the Second Amendment out of the mainstream. This way, at some future point, they can more easily restrict or outright take away citizens’ right to keep and bear arms.

The NRA is continuing to fight these infringements on our rights in the courts.

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