By Miriam Raftery
Image: U.S. Constitution, cc via Bing
June 18, 2023 (Sacramento) – California Governor Gavin Newsom has proposed a 28th amendment to reduce gun violence. Newsom says, “The 28th Amendment will enshrine in the Constitution common sense gun safety measures that Democrats, Republicans, Independents, and gun owners overwhelmingly support — while leaving the 2nd Amendment unchanged and respecting America’s gun-owning tradition.”
Because Congress lacks enough votes to pass even modest gun reforms, Newsom has called for a constitutional convention to be convened,as allowed under Article V of the Constitution. But that’s never been done. It requires a steep bar: two-thirds of states must call for a constitutional convention, amid a currently divided political landscape.
But even some who might support gun reforms may think twice about potential risks to our democracy that a constitutional convention could pose, since the process could open the door to rewriting other aspects of the Constitution that Americans have long taken for granted as permanent protections for our rights and liberties.
The risks of a Constitutional convention
Common Cause warned back in 2021 that invoking Article V to convene a constitutional convention poses a serious risk. “Such a convention would pose a danger to American democracy. It would provide a forum for a wholesale rewriting of the Constitution,” the Common Cause article states.
The Constitution provides no framework on issues such as who would serve at such a convention, or who would set the agenda. So potentially, even a convention ostensibly convened to address one issue such as gun violence might, depending on the framework, result in slashing First Amendment or other constitutional protections, adding other constitutional amendments such as to ban, restrict, or protect rights to abortion or gay marriage, strengthen or weaken environmental and labor protections.
Newsom’s proposal
According to information released by Newsom’s office, the proposed restrictions include:
- Raising the federal minimum age nationally to buy a firearm from 18 to 21,
- Mandating universal background checks for gun purchases, including sites such as gun shows,
- Instituting a reasonable waiting period for all gun purchases (California requires 10 days), and
- Barring civilian purchase of assault weapons designed for military purposes to kill as many people as possible quickly. Though defining an assault weapon poses challenges, during the years when the U.S. had an assault weapons ban in place, the number of mass shootings fell, then rose once that ban was lifted.
For years, Governor Newsom has signed laws creating bans, restrictions and limitations on guns in California, only to see those laws overturned by conservative judges for violating the U.S. Constitution’s right to keep and bear arms. For instance, the Supreme Court shot down California restrictions on concealed carry permits, prompting a surge in applications.
Support from doctors, opposition from gun owners
The California Medical Association, which represents doctors, has come out in support of Newsom’s plan to address what it calls “our nation’s gun violence epidemic.”
A statement from Dr. Donaldo Hernandez, president of CMA, reads, “While California has one of the lowest gun death rates in the country due to its gun laws, the entire country is suffering the effects of mass shootings. Gun violence is a public health crisis that impacts all Americans.”
He emphasizes, “Guns have become the leading cause of death for U.S. children and teens, and in 2021 – the most recent year for which data is available – more Americans died of gun-related injuries than any other year on record. Physicians know firsthand the damages that firearms are causing in our communities. The ideas put forward by the Governor are reasonable, evidence-based solutions that enjoy broad public support and, more importantly, will save lives and keep communities safe.”
The National Rifle Association opposes the measure. “Newsom’s latest publicly stunt once again shows that his unhinged contempt for the right to self-defense has no bounds,” the National Rifle Association told USA Today.
The gun rights group added, “California is a beacon for violence because of Newsom’s embrace of policies that champion the criminal and penalize the law-abiding.”
How effective have the proposed gun limits been?
California has some of the strongest gun restrictions in the country. Its rate of gun deaths is, isin fact, also among the nation’s lowest. Still, some mass shootings have occurred including incidents involving homemade ghost guns, guns brought in from out of state, and minors accessing parents’ weapons.
According to the RAND Gun Policy in America initiative, evidence suggests that all four of the policies proposed by Newsom would reduce gun violence, but in different ways
Raising the age limit for gun buyers is associated with reduced rates of suicide. More expansive background checks coincided with overall reductions in violent crime. Longer waiting periods corresponded with both. And though the evidence on assault weapon bans is a bit weaker, some studies suggest they may reduce both the number of mass shootings and make those that do occur less deadly.
As mass shootings have risen nationally, support for at least some gun restrictions have gained ground among not only liberals, but also among some conservatives and gun owners. Numerous polls have showed support for several of the proposals Newsom has put forward.
Even a national poll this spring by conservative media outlet Fox News found over three-fourths of respondents favor some version of the governor’s first three proposals: a 21-year age limit, universal background checks and a 30-day waiting period. In addition, 61% support a national ban on assault weapons.
A daunting process
A constitutional amendment via any means is an extremely difficult process.
Since 1791, when the Bill of Rights was added as the first 10 amendments to the Constitution, only 17 additional Constitutional amendments have been approved. The last time was 31 years ago.
There are only two ways to amend the U.S. Constitution. To date, the method used has been to get votes by two-thirds of Senators and two-thirds of House members (a near impossibility today, with control of Congress split between Republicans and Democrats). After that, any amendment must still be ratified by two-thirds of states—a task that not even the Equal Rights Amendment for women could attain.
The other option is to get two-thirds of state legislatures (34 of 50) to propose convening a constitutional convention. It’s unlikely to get two-thirds of states to agree on this, but even a convention were convened and approved of an amendment, it would then have to be ratified by three-fourths of all state legislatures, or 38 of the 50 states, Cal Matters reports.
Currently, 22 states are Republican controlled, 19 are controlled by Democrats, and around 10 swing states are more closely split. So any proposed Constitutional Amendment would need support across party lines.
How effective have gun limits been?
California has some of the strongest gun restrictions in the country. Its rate of gun deaths is also among the lowest. Still, some mass shootings have occurred including incidents involving homemade ghost guns, guns brought in from out of state, and minors accessing parents’ weapons.
According to the RAND Gun Policy in America initiative, evidence suggests that all four of the policies proposed by Newsom would reduce gun violence, but in different ways
Raising the age limit for gun buyers is associated with reduced rates of suicide. More expansive background checks coincided with overall reductions in violent crime. Longer waiting periods corresponded with both. And though the evidence on assault weapon bans is a bit weaker, some studies suggest they may reduce both the number of mass shootings and make those that do occur less deadly.