The governor introduced the proposal on national television over the summer, boosting his profile in the culture wars between Democrats and Republicans at a time when many voters feel increasingly frustrated over the lack of action in Washington to address mass shootings that have anguished communities all over the country. But constitutional scholars have warned that Newsom’s plan could be risky by opening the door for other changes to the U.S. Constitution if a convention took place.
Newsom’s resolution asks Congress to call a constitutional convention to allow states to approve an amendment that imposes new laws requiring universal background checks on gun purchases, raises the federal minimum age to purchase a firearm from 18 to 21, institutes a “reasonable waiting” period for all gun purchases and prohibits the sale of assault weapons to the public. The resolution also calls for states to be able to approve an amendment to affirm that federal, state and local governments may adopt safety regulations limiting firearm sales, possession and carrying guns in public.
For Newsom’s proposed 28th Amendment to be considered, legislatures in two-thirds of the states must vote in favor of a constitutional convention.
Robert A. Schapiro, dean of the University of San Diego School of Law, and other scholars note that it’s hard to imagine that the gun control protections would be approved even if a convention were called. Republicans control more than half of the state legislatures, some of which have recently reduced gun restrictions, and amendments to the Constitution must be ratified by three-fourths of the states to become law.
They also contend that if a constitutional conventional did take place, it’s possible for Republican states to propose other amendments to ban abortion or gay marriage, for example, through the untested process.
“It is a valid concern that if a constitutional convention were called, the scope of the convention could not be limited, and so in theory, the convention could propose any kind of Amendment to the United States Constitution, eliminating the First Amendment right to free speech or any other kind of provision,” Schapiro said. “I view Gov. Newsom’s proposal as perhaps having more symbolic value.”
Though Newsom and the authors of the resolution, state Sen. Aisha Wahab (D-Hayward) and Assemblymember Reggie Jones-Sawyer (D-Los Angeles), included language in Senate Joint Resolution 7 that seeks to limit California’s application to gun control only, Schapiro said there’s nothing in the Constitution that says a convention could be limited.
Newsom’s attempts to lessen the concerns weren’t enough of a guarantee for several lawmakers within his party.
“I support every single policy listed in this resolution; every single gun safety policy, I support,” said state Sen. Scott Wiener (D-San Francisco). “I have a 0% rating from the National Rifle Assn., which I am proud of. My concern is that we cannot have any assurance that calling for a constitutional convention will lead to a limited constitutional convention.”
Wiener voted against the resolution along with one other Democrat and several Republicans in the Senate, where it passed with a 24-11 vote last week. Five other Democrats declined to vote on the proposal.
The Assembly passed the proposal Thursday on a 51-14 vote, with several Democrats declining to vote.
Sean Clegg, Newsom’s senior political advisor, called the concerns a “red herring” considering that any amendments to the U.S. Constitution would need to be approved by three-fourths of the states.
“It’s not like you can call a constitutional convention and then it’s a free pass on whatever goes,” Clegg said. “It’s got an enormously high bar to be enacted.”
Newsom has pointed to polling by Fox News from earlier this year that found Americans overwhelmingly support the gun restrictions he proposed.
Clegg argued that issues conservatives could want to pass, such as abortion bans, would have to go against the opinion of a majority of Americans. In a Gallup poll from May, 69% of respondents said abortion should be legal in the first three months of pregnancy, for example. Perspectives on whether it should be legal under any circumstances were much more mixed.
National public opinion hasn’t stopped some states from restricting abortion rights after the Supreme Court overturned Roe vs. Wade last year. Performing an abortion is a felony in Texas, with exceptions to save the life of a patient, for example. In Florida, a 15-week abortion ban is under consideration by the state Supreme Court. If upheld, the ruling could clear the way for a six-week ban Gov. Ron DeSantis signed this year to take effect.
Mike Madrid, a Republican political consultant, said that Newsom’s decision to promote a constitutional convention, despite the concerns, was a political calculation and that the governor is smart enough to know the convention is “never coming to fruition.”
“The likelihood of this happening is basically nil,” Madrid said. “Serious constitutional scholars and historians realize that it’s dangerous, but as a crass political tool, it makes all the sense in the world.”
As an outspoken advocate for national gun control, Newsom, by simply calling for the amendment, sharpens his position as “the tip of the spear” for Democrats in the battle with Republicans over progressive and conservative values, Madrid said. Newsom has denied having an interest in running for president, and says his only political goals for the 2024 election are to help President Biden’s reelection campaign and to turn out Democratic voters.
Nonetheless, the gun control effort could help Newsom if he runs for national office in the future, Madrid said. Newsom first announced his plan in June on the “Today” show.
“This helps him win a Democratic primary. There’s no policy prescription that any Democrat could come up with that is stronger than saying, ‘I am the NRA’s worst nightmare,’” Madrid said, adding that Newsom’s stance could also help him earn support from some college-educated suburban Republican women.
Newsom has dubbed his proposal “A Right to Safety” and attempted to cast the proposed amendment as an opportunity to give elected officials more power to decide gun control measures for their own communities and to enshrine restrictions into federal law.
The conservative majority on the U.S. Supreme Court is considered averse to expanding gun control measures. A high court ruling last year struck down restrictive and subjective concealed-carry laws as unconstitutional, leaving California and a few other Democratic-led states scrambling to rewrite their gun laws.
Newsom has been traveling to other states to boost Democrats before the 2024 election and criticize the policies of right-wing Republican leaders.
On a tour of the South in April with his wife and kids, he met with students from the New College of Florida in Sarasota as DeSantis, the Republican governor, tried to overhaul the progressive campus by putting conservative trustees in charge. He also paid tribute to the Little Rock Nine at Central High School in Little Rock, Ark., and made stops in Montgomery, Ala., and Jackson, Miss.
The California governor spent time around the Fourth of July at a fundraiser in Boise, Idaho, making a case for Biden’s reelection and speaking to Democrats at a separate fundraising event in Bend, Ore., before stopping in Montana and Utah.
Clegg said Newsom also intends to build on the success of his amendment effort in California by traveling to, and working with, other states to convince them to join his fight.
“When suffrage was introduced in 1878, it took 41 years, but that wasn’t symbolic,” Clegg said. “Now, you don’t want it to take 41 years. But it’s the nature of difficult systemic change. A lot of big change starts out looking like a long shot until it’s not.”