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What Does Judge’s Ruling On Gunshows At Del Mar Mean For Pending Legislation?

 June 25, 2019 at 10:24 AM PDT

Speaker 1: 00:00 The del Mar fairgrounds effort to ban gun shows hit a roadblock last week a federal judge said the fairgrounds must continue to book gun and ammunition shows while a lawsuit filed against the band makes its way through the courts, the ruling will allow the crossroads of the West gun show to request the next available exhibit date at the fairgrounds, but it's not clear how the ongoing legal challenge to the del Mar ban will affect state legislation aimed at permanently banning the sale of guns and ammunition at the fairgrounds. Joining me as attorney and legal analyst, Dan Eaton, Dan is a former member of the del Mar fairgrounds board of directors, but he did not participate in the vote to ban the gun shows and Dan, welcome back. Thank you. Good to be with you. Maureen, the del Mar fairgrounds board of directors obviously thought they had the power to suspend gun shows at the site. Is this the kind of decision the board makes a lot? Speaker 2: 00:54 Well when you say kind of decision at a world class facility like the del Mar fairgrounds, the demand for the facilities is always going to outstrip the supply. Oh, so the board of directors routinely makes decisions about home to allow to use facility and who not to allow. The question here is whether the reasons for doing that with respect to the gun shows is unconstitutional. Speaker 1: 01:18 Now since this issue involves the sale of guns and ammunition, you'd think the court would be looking at it from a second amendment viewpoint, but that's not what this lawsuit is about. Is it Speaker 2: 01:28 actually it's not the way the crossroads of the West and so forth and those who are brought this lawsuit or framed it is viewpoint discrimination that it's a violation to decision to suspend a, the gun shows is a violation of their first amendment rights to speech and assembly and a form of viewpoint discrimination. Specifically what they say at paragraph 49 of their complaint is that gun shows in general and the doll more show in particular are a celebration of America's gun culture. That is a natural and a central, a outgrowth of the constitutional rights that flow from the second amendment to the United States constitution. Close quote. Now there is agreement between the del Mar Fair Board and the people who brought this lawsuit that these guns show celebrate the gun culture of America. What the people who brought this lawsuit are saying is that the del Mar Fairport has acted because they disagree with the viewpoint that is at the very heart of these gun shows, namely promoting this gun culture. Speaker 1: 02:27 And so they're large making it largely a first amendment issue. Speaker 2: 02:30 It's entirely a first amendment issue. In fact, uh, when you look at the various causes of action that the hip claims, I don't know the del Mar fairgrounds would agree, the 22nd district agricultural association would agree that that's the right way to frame those. Their concern is not with the viewpoint that is expressed so much as it is with the sales themselves, which is a different issue altogether. They don't care about the views on it, they just want the sales to stop. But interestingly, there are no actual exchanges of guns. At the fairgrounds at these gun shows, what happens is that the paperwork is done preliminary, uh, to the sales, which ultimately the exchange of the firearms takes place off site later after background checks and the mandatory a 10 day waiting period. So there's some very interesting issues here, uh, that are at stake. But ultimately the constitutional one is not really at its core a second amendment issue. They're not claiming that the ban, uh, suspends or effects there are burdens. Their second amendment rights, what they are saying is it burns their first amendment rights. Speaker 1: 03:29 Yeah. Can you explain the concept of viewpoint discrimination a bit more? Maybe give us an example, Speaker 2: 03:35 Maureen. We just had a great example of it yesterday with United States Supreme Court, which issued its ruling in a case called Brunetti, which dealt with a weather of the patent law, uh, could abandon the registration of material found immoral or scandalous. The United States Supreme Court said that was an invalid restriction on registration on trademarks and what Justice Alito said and concurring on that opinion is that quote at a time when free speech is under attack. It is especially important for this court to remain firm in the principle that the first amendment does not tolerate viewpoint discrimination. Close quote. Uh, that is really the question that is raised by this lawsuit and that is an example of very fresh example of a viewpoint discrimination by the government, uh, that uh, the highest court in the land has held is unconstitutional and impermissible. Speaker 1: 04:29 Why did the federal judge say that she was allowing gun shows to continue at the del Mar fairgrounds? While the lawsuit is heard in the court, does this give us any indication about what the outcome of that lawsuit might be? Speaker 2: 04:42 It absolutely does, Maureen, and here's why. Because Judge Bench Vango in granting the preliminary injunction by those that brought this said that they are likely to prevail in their argument that this constitutes unconstitutional viewpoint discrimination. That the fair board is going to be unable to show of the compelling government interests that cannot be achieved by a more narrowly tailored basis. Then this suspension of the gun shows during this a year and she said, you've got to allow them to book fees. In the meantime, Speaker 1: 05:10 a bill called Ab eight 93 sponsored by San Diego Assembly members, Todd Gloria and Tasha Burna Horvath would put a permanent ban on guns and ammunition sales at the del Mar fairgrounds. How could this legislation affect or be affected by court decisions? Speaker 2: 05:27 Well, the question is whether the motive and intent of this bill is really viewpoint discrimination and it very well could be affected by a judgment of incomes ruling ultimately, although not directly, this would put an end to gun shows at the del Mar fairgrounds and any other property owned by the 22nd district, our agricultural, uh, association. So, uh, it, it very well could be affected down the line. Uh, the interesting thing is governor Brown actually vetoed similar. That would have prohibited these kinds of controls at the cow palace in San Francisco, saying that it was better left to these local district agricultural association. This bill is designed to reinforce, uh, the 22nd district agricultural associations decision, uh, at least to consider banning these gun shows. And it goes. If it goes into effect and it's ultimately upheld as constitutional, the band would go into effect in January of 20 to 21 assuming the 22nd district Agricultural Association does not act sooner than that, Speaker 1: 06:27 do you think there's going to be a legal challenge to the assembly bill if indeed it does pass and get signed by the governor? Speaker 2: 06:34 If AB eight 93 does ultimately pass and assigned signed by Governor Nuisance, there is absolutely no question that there will be a legal challenge to it and it probably will be proud on the same grounds of that this challenge is being brought, namely that it is an infringement on of those who would promote and a actually, people who attended these gun shows first amendment rights to free speech and assembly. Oh, where that goes. No one knows, but you can expect that at the very least, it would ultimately go to the ninth circuit and maybe United States Supreme Court. Speaker 1: 07:07 I've been speaking with attorney Dan Eaton. He's a partner with Seltzer Caplan, Redman invitech here in San Diego. Dan, thank you so much. Thank you. Maureen.

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The legislation, currently being considered by a state Senate committee, is aimed at permanently banning the sale of guns and ammunition at the fairgrounds.
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