FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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, 

Plaintiffs-Appellants, 

 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 

No. 23-55431 

D.C. No. 

3:21-cv-01718-

AJB-DDL 

OPINION
2 B & L PRODUCTIONS, INC. V. NEWSOM

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, 

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of California

Anthony J. Battaglia, District Judge, Presiding

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,

Plaintiffs-Appellees,

 v.

GAVIN NEWSOM, in his official 

No. 23-3793

D.C. No.

8:22-cv-01518-

JWH-JDE
B & L PRODUCTIONS, INC. V. NEWSOM 3

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,

Defendants-Appellants,

TODD SPITZER, in his official 

capacity as District Attorney of 

Orange County, DOES, 1-10,

Defendants.

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
4 B & L PRODUCTIONS, INC. V. NEWSOM

SUMMARY*

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.
B & L PRODUCTIONS, INC. V. NEWSOM 5

Addressing the Second Amendment challenges, the 

panel determined that 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 property. Moreover, B&L essentially conceded that 

the challenged statutes do not “meaningfully constrain” any 

individual’s ability to keep and bear arms. B&L made 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.

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 PlaintiffsAppellants.

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.
6 B & L PRODUCTIONS, INC. V. NEWSOM

OPINION

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 Federal Rule 

of Civil Procedure 12(b)(6), holding that B&L had failed to 

state a claim that the ban violates its constitutional rights. 

Conversely, in Case No. 23-3793, which concerns B&L’s

challenge to bans on firearm sales (1) at the Orange County 

Fairgrounds and (2) on all state property, the district court 

granted B&L’s motion for a preliminary injunction, holding 

that B&L waslikely to succeed on the merits of all its claims. 

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.
B & L PRODUCTIONS, INC. V. NEWSOM 7

We affirm the district court’s dismissal of B&L’s claims 

in Case No. 23-55431. We vacate the grant of a preliminary 

injunction in Case No. 23-3793.

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 
8 B & L PRODUCTIONS, INC. V. NEWSOM

possession of a gun purchased at a gun show,1 which B&L 

concedes was already banned by other California statutes

that it does not challenge here.

2

Instead, AB 893 prevents 

vendors and gun show attendees from consummating a 

contract to purchase firearms or ammunition while at the Del 

Mar Fairgrounds. Whereas visitors to the Fairgrounds could 

previously agree to purchase firearms and immediately 

begin the background check process, Cal. Penal Code 

§ 26805(b)(1), AB 893 bars attendees from completing those 

preliminary steps until they have left the Fairgrounds.

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. 

1 The appellees represented at oral argument that the Challenged Statutes 

do prevent gun show attendees from taking immediate possession of 

ammunition, which was previously lawful.

2 As B&L asserts, several provisions of the California Penal Code

together prevent firearm transfers from taking place at gun shows. 

Section 27545 requires all firearm transactions to be processed through 

a licensed dealer. Section 26805 states that firearm dealers can only 

transfer sold firearms at their licensed premises, although it allows a 

dealer to prepare documents at a gun show. Section 26815(a) imposes a 

ten-day waiting period for gun purchases. Finally, Section 27310

requires all firearm transfers at gun shows to comply with state law, 

including Sections 26805 and 27545. B&L makes clear that it “do[es] 

not challenge these laws” or their resulting prohibition on taking 

immediate possession of firearms purchased at gun shows.
B & L PRODUCTIONS, INC. V. NEWSOM 9

B&L filed suit in the Southern District of California 

against Governor Gavin Newsom and other state officials3

(the “State Defendants”) on October 4, 2021, asserting that 

AB 893 violated its rights under the First and Fourteenth 

Amendments. Alleging that its gun shows are not 

economically viable without firearm sales, B&L asserted

that AB 893 therefore has “the intention and effect of 

shuttering gun show events altogether,” along with their 

attendant pro-gun speech. The district court dismissed the 

complaint with leave to amend, concluding that AB 893 does 

not ban gun shows but instead simply prohibits the sale of 

guns on state property.

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 Defendants4in the Central District of 

3 Along with Newsom, B&L initially sued California Attorney General 

Rob Bonta, as well as the San Diego District Attorney and County 

Counsel, the 22nd DAA, and California Secretary of Food & Agriculture 

Karen Ross. The district court dismissed its claims against Newsom, 

Bonta and Ross, and B&L does not challenge that determination on 

appeal.

4

In the Orange County case, B&L sued Newsom, Bonta, Ross, the 

Orange County District Attorney, and the 32nd DAA.
10 B & L PRODUCTIONS, INC. V. NEWSOM

California on August 12, 2022, challenging SB 264 and SB 

915 under the same legal theories as in the Del Mar case. The 

district court granted B&L’s motion for a preliminary 

injunction on October 30, 2023, holding that B&L was likely 

to succeed on the merits of its claims under the First and 

Second Amendments. After the State Defendants appealed 

that order, we coordinated the two cases for oral argument

and ultimately consolidated them for decision.

II. Discussion

We have jurisdiction under 28 U.S.C. § 1291. We review 

de novo the district courts’ legal determinations. Mudpie, 

Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th 

Cir. 2021) (motion to dismiss); Puente Ariz. v. Arpaio, 821 

F.3d 1098, 1103 (9th Cir. 2016) (preliminary injunction).5In 

each case, B&L argues that the Challenged Statutes 

impermissibly infringe on protected speech6 and that a ban 

on firearm sales on state property violates the plain text of 

the Second Amendment.

5 The two cases involve different standards of review for questions of 

fact. A court ruling on a motion to dismiss “accept[s] the factual 

allegations of the complaint as true and construe[s] them in the light most 

favorable to the plaintiff.” Mudpie, Inc., 15 F.4th at 889. In contrast, we 

review the factual findings underpinning a preliminary injunction for 

clear error. Puente Ariz., 821 F.3d at 1103. These differing standards do 

not affect our analysis: even accepting B&L’s factual allegations and the 

Orange County district court’s findings of fact as true, B&L has failed to 

establish a constitutional violation. 

6

In each case B&L has also alleged violations of the Equal Protection 

Clause, but it concedes that its Equal Protection claims essentially 

duplicate its First Amendment claims, as B&L’s Equal Protection claims 

rely on its assertion that the Challenged Statutes target pro-gun speech. 

We therefore do not separately address those arguments.
B & L PRODUCTIONS, INC. V. NEWSOM 11

A. First Amendment

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 
12 B & L PRODUCTIONS, INC. V. NEWSOM

Amendment. Nordyke v. Santa Clara County, 110 F.3d 707, 

710 (9th Cir. 1997) (Nordyke 1997).7 Conversely, the State 

Defendants characterize the Challenged Statutes as solely 

regulating “the act of exchanging money for a gun,” which 

we held “is not ‘speech’ within the meaning of the First 

Amendment.”8Id. at 710. Neither characterization is 

sufficiently precise.

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, 

7

In Nordyke 1997, Santa Clara County’s addendum explicitly prohibited 

the “offering for sale” of firearms and ammunition, language not present 

in the Challenged Statutes. 110 F.3d at 708-09. Another problem in 

Nordyke 1997 was that the County used a lease provision to “curtail[] 

commercial speech, rather than attempting to impose by proper 

legislative acts such restrictions on the sale of guns at gun shows not 

otherwise provided by, but consistent with, the applicable federal and 

state law.” Nordyke 1997, 110 F.3d at 713. The court expressly reserved 

the question of whether a state could ban offers to sell firearms by statute. 

While we need not resolve that question, we note that conceptual 

similarity between commercial advertising and formal contract offers 

means that offers have a stronger argument for First Amendment 

protection than acceptance of such offers, which we hold does not 

constitute protected speech.

8 Contrary to B&L’s assertion, that holding is not dicta. We later noted 

that “[w]e have previously held that the act of exchanging money for a 

gun is not ‘speech’ for the purposes of the First Amendment.” Nordyke 

v. King, 319 F.3d 1185, 1191 (9th Cir. 2003) (Nordyke 2003).

9 The language regarding “authoriz[ing] or allow[ing]” firearm sales 

does not regulate conduct beyond contracting for the sale of firearms. It 

simply extends liability to state officials who allow such conduct to take 

place.
B & L PRODUCTIONS, INC. V. NEWSOM 13

which is only “completed when the offer is made and 

accepted.” Norfolk & W. Ry. Co. v. Sims, 191 U.S. 441, 447 

(1903) (emphasis added). Because a contract can be 

consummated prior to delivery of the purchased product, the 

regulated conduct is likewise not “the act of exchanging 

money for a gun.”10 As acceptance is what determines when 

a contract becomes binding, the Challenged Statutes prohibit 

accepting an offer to sell firearms or ammunition on state 

property.

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 

10 The immediate transfer of a firearm purchased at a gun show was 

already illegal in California, Cal. Penal Code §§ 26805, 27310, further 

indicating that delivery of firearms on state property is not what “drew 

the legal remedy,” Int’l Franchise Ass’n, 803 F.3d at 408.
14 B & L PRODUCTIONS, INC. V. NEWSOM

called a contract, . . . [restrictions on them] cannot be said to 

have enacted a limitation on freedom of speech or the press 

subject to First Amendment scrutiny.”). B&L has therefore 

failed to establish that “conduct with a ‘significant 

expressive element’ drew the legal remedy” of the 

Challenged Statutes. Int’l Franchise Ass’n, 803 F.3d at 

408.11

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 

11 While B&L characterizes acceptance as part of “the commercial 

speech associated with the sale of an otherwise lawful product,” it cites 

no authority for that proposition and fails to identify a single case where 

regulations on acceptance were subjected to First Amendment scrutiny. 

Indeed, as acceptance is nonexpressive conduct, it necessarily cannot be 

considered “commercial speech.” The commercial speech doctrine does 

not expand the scope of the First Amendment beyond expressive 

conduct; it instead ensures that such conduct receives protection even if 

the motivations behind it are entirely commercial. Va. State Bd. of 

Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 762 (1976) 

(“Our question is whether speech which does ‘no more than propose a 

commercial transaction’ is so removed from any ‘exposition of ideas’ 

. . . that it lacks all protection.” (citations omitted)). Regardless, 

regulations on acceptance do not implicate any of the principles 

underlying the commercial speech doctrine, which protects “the free 

flow of commercial information” from regulations that would “keep[] 

the public in ignorance.” See id. at 765, 770. Contract formation is not 

about keeping the public informed; it is a private interaction between 

parties.
B & L PRODUCTIONS, INC. V. NEWSOM 15

rights,” and “[c]andidates for office even attend to discuss 

politics, government, and law with their constituents.” 

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 

12 We must accept that B&L may stop hosting gun shows in the absence 

of firearm sales, but its assertion that no other entity would step in to 

provide a forum for pro-gun speech on state property is speculative. See, 

e.g., Graham-Sult v. Clainos, 756 F.3d 724, 752 (9th Cir. 2014) 

(“Plaintiffs base their remaining arguments on speculation and 

inferences.”). Indeed, B&L’s representation to both district courts that it

itself “has offered to attempt to hold events without sales of firearms, 

ammunition, or firearm precursor parts” appears to undermine its

assertions. 

On that front, B&L alleges that in response to these offers, both DAAs 

“dragged [their] feet and refused to provide dates for” future events. The 

32nd DAA asserts that it is willing to coordinate with B&L to schedule 

gun shows that comply with the Challenged Statutes, but that B&L has 

not reached out since late 2021. Going forward, if the DAAs refuse to 

schedule gun shows without gun sales, B&L might have grounds for an
16 B & L PRODUCTIONS, INC. V. NEWSOM

First Amendment. Regulations that do not directly regulate 

expressive activity are only scrutinized if they have “the 

inevitable effect of ‘singling out those engaged in expressive 

activity.’” Int’l Franchise Ass’n, 803 F.3d at 408 (quoting 

Arcara, 478 U.S. at 706-07). The mere fact that a regulation 

may have economic implications for the feasibility of certain

speech does not meet that standard. See HomeAway.com, 

Inc., 918 F.3d at 685 (“The ‘inevitable effect of the 

[Ordinance] on its face’ is to regulate nonexpressive 

conduct—namely, booking transactions—not speech.”

(alteration in original) (quoting Sorrell, 564 U.S. at 565)); 

Nordyke 2003, 319 F.3d at 1191 (a law could be 

unconstitutional when it “interfere[s] with speech itself, not 

[through] the hindering of actions (e.g., sales) that are not 

speech”); Sorrell, 564 U.S. at 567 (“[T]he First Amendment 

does not prevent restrictions directed at commerce or 

conduct from imposing incidental burdens on speech.”); cf. 

Mobilize the Message, LLC v. Bonta, 50 F.4th 928, 935-37 

(9th Cir. 2022) (statute that classified doorknockers and 

signature gatherers as employees did not infringe First 

Amendment rights, even if it impacted the employer’s ability 

to speak by increasing labor costs). B&L may choose not to 

provide a forum for pro-gun speech if it decides gun shows 

are not profitable without firearm sales, but doing so would 

be its own decision, not the “inevitable effect” of the 

Challenged Statutes. See HomeAway.com, 918 F.3d at 685 

(“Contrary to the Platforms’ claim, the Ordinance does not 

‘require’ that they monitor or screen advertisements. It 

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.
B & L PRODUCTIONS, INC. V. NEWSOM 17

instead leaves them to decide how best to comply with the 

prohibition on booking unlawful transactions.”).

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 Statues 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 

13 The stated purpose of the Challenged Statutes is to prevent “dangerous 

incidents” like those in nearby states—“an official vendor accused of 

trafficking illegal firearms, sales of firearms to individuals registered in 

the Department of Justice Bureau of Firearms Armed Prohibited Persons 

System, and illegal importation of large-capacity magazines”—all of 

which relate to the sale of firearms rather than speech.

14 B&L cites City of Austin v. Reagan National Advertising of Austin, 

LLC, 596 U.S. 61 (2022), for the proposition that “[i]f there is evidence 
18 B & L PRODUCTIONS, INC. V. NEWSOM

Court has disclaimed the idea that “legislative motive is a 

proper basis for declaring a statute unconstitutional” in the 

absence of a direct impact on protected speech. United States 

v. O’Brien, 391 U.S. 367, 383-84 (1968); cf. Dobbs v. 

Jackson Women’s Health Org., 597 U.S. 215, 253 (2022) 

(“This Court has long disfavored arguments based on alleged 

legislative motives.”).

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.

15 While some statements describe the Challenged Statutes as a “ban on 

gun shows,” such an interpretation cannot be squared with the plain text 

of the Challenged Statutes, which only restricts firearm sales. See, e.g.,

Religious Tech. Ctr. v. Wollersheim, 796 F.2d 1076, 1082 (9th Cir. 1986) 

(“When interpreting a statute, the plain meaning of the words used is 

controlling absent ‘a clearly expressed legislative intent to the 

contrary.’” (quoting United States v. Turkette, 452 U.S. 576, 580 

(1981))). That any legislator described the Challenged Statutes as a ban 

on gun shows demonstrates only that legislator’s personal understanding 

of the statutes’ purpose.
B & L PRODUCTIONS, INC. V. NEWSOM 19

Arcara, 478 U.S. at 707 n.4 (considering potential pretext 

arguments against a statute that shuttered bookstores). It is 

virtually inevitable that elected officials will have 

underlying ideological views on political issues. But even if 

California legislators hold personal animus against pro-gun 

speech, the statutes they enact only implicate the First 

Amendment if that animus manifests as legislation with the 

direct or inevitable impact of restricting speech.

16 See 

16 Motivation can, in contrast, be relevant in examining efforts by 

government officials to reach beyond their authority to coerce others into 

doing something that the official cannot regulate directly. The Supreme 

Court’s recent decision in Nat’l Rifle Ass’n v. Vullo, 602 U.S. ___, 2024 

WL 2751216 (May 30, 2024), illustrates an important distinction. In that 

case the Court held that the NRA had plausibly alleged that the 

superintendent of the New York Department of Financial Services 

violated the First Amendment by coercing entities regulated by the 

Department to terminate their business relationships with the NRA in 

order to punish or suppress its advocacy. The difference between that 

case and ours is that the Department did not have the authority to 

accomplish the result it sought by direct regulation. As the Court stated, 

the First Amendment problem with the Department’s approach was that 

it allowed government officials to “expand their regulatory jurisdiction 

to suppress the speech of organizations that they have no direct control 

over.” Id. at *11. It reiterated that distinction by quoting its own 

precedent: “Ultimately, Bantam Books stands for the principle that a 

government official cannot do indirectly what she is barred from doing 

directly: A government official cannot coerce a private party to punish 

or suppress disfavored speech on her behalf.” Id. at *8 (emphasis added) 

(citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67-69 (1963)).

The challenge in our case is different. B&L objects to statutes 

enacted by the Legislature, but it does not contest the Legislature’s 

enactment of the statutes as beyond its authority to regulate state 

property. As discussed above, individual intent is not relevant to a facial 

challenge against a statute without the direct or inevitable impact of 

restricting speech.
20 B & L PRODUCTIONS, INC. V. NEWSOM

HomeAway.com, Inc., 918 F.3d at 685. As the Challenged 

Statutes have no such impact, B&L has failed to allege a 

First Amendment violation as a matter of law.

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.”

17 While B&L suggests that its proposed conduct is the general “purchase 

of firearms,” such a definition is not attuned to the actual activity that the 

Challenged Statutes regulate: namely, the sale and purchase of firearms 

and ammunition on state property. Doe v. Bonta, No. 23-55133, 2024 

WL 2037144, at *5 (9th Cir. May 8, 2024) (proposed conduct is “what 

the plaintiffs wanted to do and what the challenged law prevented them 

from doing”). In particular, as discussed above, the proposed conduct is 

consummating a formal contract for firearms or ammunition on state 

property. See Sims, 191 U.S. at 447.
B & L PRODUCTIONS, INC. V. NEWSOM 21

U.S. Const. amend.II. On its face, that language says nothing 

about commerce, let alone firearm sales on state property. 

To be sure, our court has consistently held that the Second 

Amendment also “protects ancillary rights necessary to the 

realization of the core right to possess a firearm for selfdefense.” Teixeira v. County of Alameda, 873 F.3d 670, 677 

(9th Cir. 2017) (en banc). While we held in Teixeira that the 

right to sell firearms is not a protected ancillary right,

18 id. at 

673, 683, we acknowledged that unless the right to acquire

firearms receives some Second Amendment protection, the 

right to keep and bear firearms would be meaningless, id. at 

677; see Andrews v. State, 50 Tenn. 165, 178 (1871) (“The 

right to keep arms, necessarily involves the right to purchase 

them, . . . and to purchase and provide ammunition suitable 

for such arms . . . .”). 

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.

18 We reasoned that “[n]othing in the specific language of the 

Amendment suggests that sellers fall within the scope of its protection,”

and that Founding-era “Second Amendment analogues in state 

constitutions . . . nowhere suggest[ed] in their text that the constitutional 

protection extends to those who would engage in firearms commerce.” 

Teixeira, 873 F.3d at 683. As this holding was based on the type of textand-history analysis mandated by the Supreme Court in District of 

Columbia v. Heller, 554 U.S. 570 (2008), and Bruen, it remains good 

law.
22 B & L PRODUCTIONS, INC. V. NEWSOM

B&L argues that this holding involves the type of 

“interest-balancing inquiry” that Bruen proscribes. Bruen, 

597 U.S. at 22 (quoting District of Columbia v. Heller, 554 

U.S. 570, 634 (2008)). That assertion is inaccurate. At no 

point in Teixeira did we balance the litigants’ competing 

interests, as we determined that it was unnecessary to apply 

any level of scrutiny. Teixeira, 873 F.3d at 679. Instead, we 

held that the plain text of the Second Amendment only 

prohibits meaningful constraints on the right to acquire 

firearms. Id. at 680.

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—

19 Such an interpretation also conforms with logic: if the Second 

Amendment’s full protections apply to any restriction that implicates the 

ability to purchase firearms, laws of general applicability that restrict all 

forms of commerce in a given area could be subjected to exacting Second 

Amendment review.
B & L PRODUCTIONS, INC. V. NEWSOM 23

only implicates the Second Amendment in limited 

circumstances. The Court explicitly framed “laws imposing 

conditions and qualifications on the commercial sale of 

arms” as “presumptively lawful regulatory measures.” 

Heller, 554 U.S. at 626-27 & n.26 (emphasis added); see 

also Bruen, 597 U.S. at 81 (Kavanaugh, J., concurring). For 

any law to be “presumptively lawful,” it necessarily must not 

implicate the plain text of the Second Amendment. 

Otherwise, Bruen makes clear that the Constitution would

“presumptively protect[] that conduct,” and the government 

would bear the burden of identifying a historical tradition of 

similar regulation. Id. at 17 (emphasis added). The most

reasonable interpretation of that passage is that commercial 

restrictions presumptively do not implicate the plain text of 

the Second Amendment at the first step of the Bruen test.

While the Court did not specify what is required to overcome 

that presumption, requiring that a regulation “meaningfully 

constrain[]” the right to keep and bear arms for the purpose 

of self-defense faithfully tracks the Second Amendment’s 

plain text. Teixeira, 873 F.3d at 680. 

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 
24 B & L PRODUCTIONS, INC. V. NEWSOM

acquire firearms does not. As we held in Teixeira, “the 

Second Amendment does not elevate convenience and 

preference over all other considerations,” nor does it 

“guarantee[] a certain type of retail experience.” Teixeira, 

873 F.3d at 680 & n.13. 

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 
B & L PRODUCTIONS, INC. V. NEWSOM 25

firearm offsite” after a waiting period.20 The only thing 

attendees can no longer do is agree to buy firearms while 

physically present at the gun show. Nothing in the Second 

Amendment’s text provides a right to the contrary.

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.

20 As noted above, this requirement did not apply to ammunition 

purchases, meaning that attendees were previously able to immediately 

receive ammunition they purchased at gun shows. That fact does not 

change our analysis, as no plaintiffs allege that the Challenged Statutes

meaningfully constrain their ability to acquire ammunition.

21 Because B&L failed to show even “serious questions going to the 

merits,” we need not consider the other injunction factors in reversing 

the grant of a preliminary injunction in the Orange County case. Disney 

Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (quoting 

All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 

2011)).