B & L PRODUCTIONS, INC., DBA Crossroads of the West; BARRY BARDACK; RONALD J. DIAZ, Sr.; JOHN DUPREE; CHRISTOPHER IRICK; ROBERT SOLIS; LAWRENCE MICHAEL WALSH; CAPTAIN JON‘S LOCKERS, LLC; L.A.X. FIRING RANGE, INC., DBA LAX AMMO; CALIFORNIA RIFLE & PISTOL ASSOCIATION, INC.; SOUTH BAY ROD AND GUN CLUB, INC.; SECOND AMENDMENT FOUNDATION v. GAVIN NEWSOM, in his official capacity as Governor of the State of California and in his personal capacity; ROB BONTA, in his official capacity as Attorney General of the State of California and in his personal capacity; KAREN ROSS, in her official capacity as Secretary of California Department of Food & Agriculture and in her personal capacity; 22ND DISTRICT AGRICULTURAL ASSOCIATION; SUMMER STEPHAN, in her official capacity as District Attorney of San Diego County; LONNIE J. ELDRIDGE, in his official capacity as County Counsel of San Diego County; DOES, 1-50; B & L PRODUCTIONS, INC., DBA Crossroads of the West; CALIFORNIA RIFLE & PISTOL ASSOCIATION; GERALD CLARK; ERIC JOHNSON; CHAD LITTRELL; JAN STEVEN MERSON; ASIAN PACIFIC AMERICAN GUN OWNER ASSOCIATION; SECOND AMENDMENT LAW CENTER, INC.; SECOND AMENDMENT FOUNDATION v. GAVIN NEWSOM, in his official capacity as Governor of the State of California; ROB BONTA, in his official capacity as Attorney General of the State of California; KAREN ROSS, in her official capacity as Secretary of California Department of Food & Agriculture and in her personal capacity; 32ND DISTRICT AGRICULTURAL ASSOCIATION; TODD SPITZER, in his official capacity as District Attorney of Orange County, DOES, 1-10
No. 23-55431; No. 23-3793
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed June 11, 2024
Appeal from the United States District Court for the Southern District of California, Anthony J. Battaglia, District Judge, Presiding; Appeal from the United States District Court for the Central District of California, John W. Holcomb, District Judge, Presiding
Argued and Submitted March 6, 2024 Pasadena, California
Filed June 11, 2024
Before: Richard R. Clifton, Holly A. Thomas, and Roopali H. Desai, Circuit Judges.
Opinion by Judge Clifton
First and Second Amendments/Gun Shows
In two separate actions involving First and Second Amendment challenges brought by B&L Productions, Inc., an operator of gun shows in California, to statutes that bar the sale of guns on state property, the panel affirmed the district court‘s dismissal of B&L‘s claims in Case No. 23-55431 and vacated the district court‘s order granting B&L‘s motion for a preliminary injunction in Case No. 23-3793.
In Case No. 23-55431, B&L challenged a ban on firearm sales at the Del Mar Fairgrounds. In Case No. 23-3793, B&L challenged bans on firearm sales (1) at the Orange County Fairgrounds and (2) on all state property.
Addressing the First Amendment challenges, the panel held that because the challenged statutes solely restrict nonexpressive conduct—contracting for the sale of firearms—they are not subject to First Amendment scrutiny. The statutes do not prohibit offers to sell firearms but rather bar the acceptance of such offers, which is what determines when a contract becomes binding. Accepting an offer, an act that formally consummates a business transaction, is nonexpressive conduct and is not entitled to First Amendment protection. Moreover, the challenged statutes apply to all vendors and, therefore, do not have the effect of “singling out” those gun show participants who wish to engage in expressive activity.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Anna M. Barvir (argued), Tiffany D. Cheuvront, C.D. Michel, and Alexander A. Frank, Michel & Associates PC, Long Beach, California; Donald Kilmer, Law Offices of Donald Kilmer APC, Caldwell, Idaho; for Plaintiffs-Appellants.
Charles J. Sarosy (argued), Deputy Attorney General; Anthony R. Hakl, Supervising Deputy Attorney General; Thomas S. Patterson, Senior Assistant Attorney General; Rob Bonta, California Attorney General; Office of the California Attorney General, Los Angeles, California; Katie A. Richardson and Timothy M. White, Office of County Counsel, County of San Diego, San Diego, California; for Defendants-Appellees.
CLIFTON, Circuit Judge:
These cases involve challenges brought by B&L Productions, Inc., and associated stakeholders (“B&L“) against state officeholders tasked with enforcing various California statutes (the “Challenged Statutes“) that bar the sale of guns on state property. In both cases, B&L asserts that the Challenged Statutes restrict protected speech in violation of the First and Fourteenth Amendments and infringe on the right to keep and bear arms under the Second Amendment.
In Case No. 23-55431, which concerns B&L‘s challenge to a ban on firearm sales at the Del Mar Fairgrounds, the district court dismissed B&L‘s lawsuit under
We conclude that the Challenged Statutes do not infringe on B&L‘s constitutional rights. Because the statutes solely restrict nonexpressive conduct—contracting for the sale of firearms—they are not subject to First Amendment scrutiny. As well, B&L essentially concedes that the Challenged Statutes do not “meaningfully constrain” any individual‘s ability to keep and bear arms. The Challenged Statutes therefore do not implicate the plain text of the Second Amendment.
I. Background
Plaintiff B&L Productions, Inc., operates gun shows in California under the name Crossroads of the West. Its gun shows are centered on the sale of firearms, but they also involve lectures, classes, and the sale of other goods. B&L hosts gun shows at the Del Mar Fairgrounds in San Diego County and the Orange County Fair & Event Center (“Orange County Fairgrounds“), which are owned by the State of California and operated by the 22nd and 32nd District Agricultural Associations (singularly, “DAA“), respectively.
In 2018, the 22nd DAA imposed a one-year moratorium on gun shows at the Del Mar Fairgrounds. After B&L filed suit, a district court held that an explicit ban on gun shows likely violates the First and Fourteenth Amendments. B & L Prods., Inc. v. 22nd Dist. Agric. Ass‘n, 394 F. Supp. 3d 1226, 1236, 1243-50 (S.D. Cal. 2019). In April 2020, the parties reached a settlement, allowing B&L to book gun shows but reserving the right for the 22nd DAA to change its policies in the future.
In October 2019, while that litigation was underway, California passed AB 893, which bars any “officer, employee, operator, lessee, or licensee” of the 22nd DAA from “contract[ing] for, authoriz[ing], or allow[ing] the sale of any firearm or ammunition on the property or in the buildings that comprise the Del Mar Fairgrounds.” The law on its face does not prohibit gun show vendors from advertising the firearms they are offering for sale. It also does not prevent attendees from taking immediate
The April 2020 settlement had acknowledged the passage of AB 893 and noted that the agreement‘s terms were subject to the statute‘s requirements. Based on AB 893, the 22nd DAA subsequently refused to contract with B&L to host any gun show at which firearms and ammunition were to be sold.
B&L filed an amended complaint on August 31, 2022, in which it added a Second Amendment claim based on the Supreme Court‘s opinion in New York State Rifle & Pistol Ass‘n v. Bruen, 597 U.S. 1 (2022). The district court dismissed the amended complaint in its entirety, holding that B&L had failed to state any claim upon which relief could be granted. B&L appealed that decision.
Meanwhile, in 2021, California passed SB 264, which imposes the same restrictions as AB 893 on the Orange County Fairgrounds. The next year, the state passed SB 915, which expanded the ban on firearm sales to all state property. B&L sued the State Defendants4 in the Central District of
II. Discussion
We have jurisdiction under
B&L contends that the Challenged Statutes violate its rights under the First Amendment. As the party asserting such a claim, B&L bears the burden “to demonstrate that the First Amendment even applies.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984). To meet this burden, B&L raises two separate arguments. First, it asserts that the Challenged Statutes are an attempt to ban gun shows and the pro-gun “pure speech” that occurs at them. Alternatively, B&L argues that contracting for the sale of firearms is itself protected commercial speech, and that a restriction on such contracts therefore implicates the First Amendment.
We need not address the distinction between commercial and pure speech, as B&L fails to establish that the Challenged Statutes regulate any speech cognizable under the First Amendment. The First Amendment only applies when “conduct with a ‘significant expressive element’ drew the legal remedy or the [statute] has the inevitable effect of ‘singling out those engaged in expressive activity.‘” Int‘l Franchise Ass‘n v. City of Seattle, 803 F.3d 389, 408 (9th Cir. 2015) (quoting Arcara v. Cloud Books, Inc., 478 U.S. 697, 706-07 (1986)). Because the Challenged Statutes do not directly or inevitably restrict any expressive activity, they do not implicate the First Amendment.
1. Directly Regulated Conduct
Our first inquiry is to determine what precise conduct “drew the legal remedy” of the Challenged Statutes. That question is a core point of contention. B&L asserts that the statutes regulate all “the commercial speech associated with the sale of an otherwise lawful product,” including offers to sell firearms, which we have held implicate the First
The Challenged Statutes simply prohibit “contract[ing] for... the sale of any firearm or ammunition” on state property.9 On its face, that language solely regulates the moment at which a binding contract is formally consummated. The statutes therefore do not prohibit offers to sell firearms—an offer alone does not form a contract,
The Challenged Statutes’ limited scope simplifies our inquiry, as acceptance of an offer is not entitled to First Amendment protection. The Supreme Court has held that “restrictions on protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct.” Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011). Following Sorrell, our court has held that consummating a business transaction is nonexpressive conduct unprotected by the First Amendment. HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 685 (9th Cir. 2019) (“[T]he ‘business agreement or business dealings’ associated with processing a booking is not conduct with a ‘significant expressive element.‘” (quoting Int‘l Franchise Ass‘n, 803 F.3d at 408)). As acceptance of an offer is simply the act that formally consummates such a transaction, Sims, 191 U.S. at 447, it is likewise nonexpressive conduct. Cf. Lowe v. SEC, 472 U.S. 181, 232 (1985) (White, J., concurring) (“[A]s offer and acceptance are communications incidental to the regulable transaction
2. Inevitable Effect
B&L argues that even if the Challenged Statutes do not directly regulate protected speech, they indirectly implicate the First Amendment by jeopardizing the pro-gun speech that occurs at gun shows. B&L emphasizes that at gun shows, “[o]rganizations share information, speakers give lectures, trainers hold classes, and patrons discuss gun
On their face, the Challenged Statutes do not restrict any of those forms of speech. A “celebration of America‘s ‘gun culture,‘” in the words of one of B&L‘s briefs, can still take place on state property, as long as that celebration does not involve contracts for the sale of guns. B&L nevertheless argues that gun shows “will disappear” “[w]ithout the anchor of commerce in firearms,” so a restriction on the latter inherently infringes on gun-related speech. It notes that “[m]any (maybe most) of the people who attend gun shows are there to engage in commerce with experienced firearm retailers,” but that “[i]f licensed retailers cannot lawfully sell their products at these events, there is little financial incentive for [those retailers] to attend.”
Even assuming B&L‘s allegations are accurate,12 the indirect economic impacts it alleges do not implicate the
as-applied challenge against the DAAs, although B&L represented at oral argument that it is not presently maintaining such a challenge. In any event, any anti-gun animus on the part of the DAAs does not support B&L‘s facial challenge, given that the DAAs had no role in the drafting process.
Because the Challenged Statutes, moreover, apply to all vendors, including those who may wish to sell guns for purely financial reasons or other purposes, they do not have the effect of “singling out” those gun show participants who wish to engage in expressive activity. In other words, the impact of the Challenged Statutes does not differ based on whether a party is engaged in such activity. See id. at 685-86 (platforms would be impacted based on whether they process transactions, not whether they host commercial speech); Arcara, 478 U.S. at 706-07. Even if the ultimate result of the Challenged Statutes is that gun shows on state property are no longer viable, the gun show vendors who are not engaged in pro-gun expression—both those who sell guns for nonexpressive reasons and those who sell things like snacks and memorabilia—would be just as impacted as those who are.
When “the only inevitable effect, and the stated purpose”13 of a statute is to regulate nonexpressive conduct, our inquiry is essentially complete. HomeAway.com, Inc., 918 F.3d at 685. In such circumstances, “a court may not conduct an inquiry into legislative purpose or motive beyond what is stated within the statute itself.”14 Id. The Supreme
Despite that clear precedent, B&L asserts that anti-gun animus underlies the Challenged Statutes,15 relying on a small number of statements from California officials. As O‘Brien made clear, courts will not invalidate a statute that is “constitutional on its face, on the basis of what fewer than a handful of [legislators] said about it.” 391 U.S. at 384 (“What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it . . . .“). A party asserting that a statute is a pretext for suppression of First Amendment protected expression must demonstrate that the statute restricts such expression. Cf.
that an impermissible purpose or justification underpins a facially content-neutral restriction, . . . that restriction may be content based.” Id. at 76. That doctrine applies when a statute actually regulates speech and a court has to determine whether the statute targets certain content. Id. As the Challenged Statutes do not directly or inevitably impact speech, City of Austin is inapposite.
B. Second Amendment
B&L also contends that the Challenged Statutes violate the Second Amendment. In Bruen, the Supreme Court held that a litigant invoking the Second Amendment must first establish that “the Second Amendment‘s plain text covers an individual‘s conduct.” Bruen, 597 U.S. at 24. As the plain text of the Second Amendment does not cover B&L‘s proposed conduct—namely, contracting for the sale of firearms and ammunition on state property17—B&L‘s argument necessarily fails.
The plain text of the Second Amendment directly protects one thing—the right to “keep and bear” firearms.
Although we therefore need not inquire into the motives of individual legislators, we note that the statements highlighted by B&L itself suggest that the authors of the Challenged Statutes were primarily concerned with commerce, rather than speech. Assemblymember Todd Gloria‘s contention that “California should in no way help to facilitate the sale of firearms” is focused on firearms commerce. Senator Dave Min similarly positioned SB 264 as demonstrating that California does not endorse “our taxpayer venues being used to sell more guns in our communities.”
We nevertheless held in Teixeira that “gun buyers have no right to have a gun store in a particular location, at least as long as their access is not meaningfully constrained.” Teixeira, 873 F.3d at 680 (emphasis added). We did not define “the precise scope of any such acquisition right under the Second Amendment,” but held that a violation would require evidence that a statute “impedes . . . residents from acquiring firearms.” Id. at 678.
Reading such a limit into the extent to which the Second Amendment‘s plain text protects ancillary rights is fully consistent with Bruen. The Supreme Court has made clear that the Second Amendment does not speak to all restrictions that impact firearms in any way. See Bruen, 597 U.S. at 81 (Kavanaugh, J., concurring) (“[T]he right secured by the Second Amendment was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” (quoting Heller, 554 U.S. at 626)). Instead, it secures the right to firearms “for lawful purposes, most notably for self-defense.” McDonald v. City of Chicago, 561 U.S. 742, 781 (2010). Ancillary rights are protected to the extent necessary to serve those purposes; otherwise, the Second Amendment is not implicated by restraints on such rights.19
The Supreme Court itself has suggested that the ancillary right at issue in these cases—the right to acquire firearms—
In assessing whether particular “laws imposing conditions and qualifications on the commercial sale of arms” implicate that right, the approach we took in Teixeira—whether a challenged regulation meaningfully impairs an individual‘s ability to access firearms—remains appropriate. Under that approach, we have held that a ban on all sales of a certain type of gun or ammunition in a region generally implicates the Second Amendment, as such a ban meaningfully constrains the right to keep and bear that firearm or ammunition. See, e.g., Jackson v. City & County of San Francisco, 746 F.3d 953, 968 (9th Cir. 2014); Teixeira, 873 F.3d at 677. But a minor constraint on the precise locations within a geographic area where one can
B&L essentially concedes that the Challenged Statutes do not “meaningfully constrain” the right to keep and bear arms. It makes no allegation that a ban on sales on state property would impair a single individual from keeping and bearing firearms, even after having an opportunity to amend its complaint to add one. B&L‘s implicit concession is unsurprising, as the record suggests that no individual‘s access to firearms would be limited. For instance, there are six licensed firearm dealers in the same zip code as the Orange County Fairgrounds. Merely eliminating one environment where individuals may purchase guns does not constitute a meaningful constraint on Second Amendment rights when they can acquire the same firearms down the street.
Indeed, B&L notes that “[g]un show vendors are often the same licensed vendors that have brick-and-mortar stores in the community[] [and] operate legally over the internet.” Given that offers are not proscribed, attendees of gun shows in California can peruse such offers, leave the premises, and immediately order their desired goods from the vendor. Such a system does not meaningfully delay the delivery of purchased firearms—B&L acknowledges and expressly “do[es] not challenge” existing laws that already require gun show attendees who purchase a firearm to “pick up their
III. Conclusion
We conclude that B&L has failed to establish that the Challenged Statutes violate its constitutional rights.21 The district court‘s dismissal of Case No. 23-55431 is AFFIRMED. The preliminary injunction granted in Case No. 23-3793 is VACATED. Costs shall be awarded to the State Defendants in both cases.