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Prof. Glenn Smith on How Commercial Speech Doctrine is Impacting California Gun Control Law

Guns

The September 2018 decision of Federal District Judge Troy Nunley in Tracy Rifle and Pistol LLC v. Harris is noteworthy for at least two reasons, writes California Western Prof. Glenn Smith in a recent op-ed in the Jurist.

First, the decision invalidated a California law prohibiting firearms retailers from displaying on the exterior of their premises any readily visible “handgun or imitation handgun, or placard advertising the sale or other transfer thereof.” In doing this, Tracy Rifle and Pistol joins a growing list of lawsuits challenging state and local gun-control laws in the aftermath of a pair of Supreme Court decisions expanding the Second Amendment right to “keep and bear arms.”

Second, continues Prof. Smith, Tracy Rifle and Pistol is a textbook illustration of the specialized, and in some ways awkward, place of commercial speech/advertising in the First Amendment pantheon. The case is a reminder of the extensive and subjective policy-making discretion the “intermediate” commercial speech standards afford to judges.

As one of the strictest gun-control states, California has generated several high-profile decisions in recent years about the scope and legitimacy of gun control. Controversies have arisen especially since the 2008 decision in District of Columbia v. Heller, which held that the Second Amendment’s “central component” guaranteed a right of self-defense and home protection unmoored to service in a “well-regulated Militia” (as the Amendment’s preface puts it), and the 2010 decision in McDonald v. City of Chicago, which applied Heller’s re-invigorated private-self-defense right to state and local gun-control laws.

The 1980 decision in Central Hudson Gas & Elec. Corp. v Pub. Serv. Comm’n of N.Y. elaborated a four-part test. The Central Hudson test provides that a governmental unit can only regulate (1) “non-misleading” advertising of a “lawful” product if (2) government has “substantial” interests that are (3) “directly” and “materially” advanced by the regulation, which (4) must be “no more extensive than necessary” to further the government’s interests.

After all, concludes Prof. Smith, the bases on which judges might differ under Central Hudson are classic matters of non-judicial judgment more typically associated with elected and appointed policy-makers.  In our constitutional democracy, legislators and administrative rule-makers typically assess the relative costs and benefits and efficacy of different proposed courses of action.

The current commercial speech doctrine might obligate judges to act outside of their judicial comfort zone.

Read the complete article here: https://www.jurist.org/commentary/2018/10/gunning-for-commercial-speech/