May 30, 2024
It wouldn't get through Congress but could facilitate a hyper-destructive and divisive constitutional convention.

The weaknesses in Gov. Gavin Newsom’s proposal for a 28th Amendment to the U.S. Constitution do not lie with the gun controls he seeks to win via this long, convoluted route.

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Rather, it’s the rest of the process that’s a potential killer — not of people, but of the basic civil liberties guaranteed by the Bill of Rights contained in that Constitution. Newsom, realizing it is unlikely almost to the point of impossibility, has pretty much abandoned the route by which every constitutional amendment of the last 200 years worked its way into America’s primary governing document.

That has been via Congress proposing amendments that were then approved by legislatures in three-fourths of the states, a number now standing at 38. Because Congress and many legislatures labor under the strong influence of the National Rifle Association and other dedicated gun control foes, Newsom knows no firearms amendment proposed in the normal manner stands much chance of passage.

If he tries to follow the usual path, Newsom will be thwarted in raising the federal minimum age to purchase a gun from 18 to 21, he will win no universal background checks to prevent dangerous individuals getting guns and there will be no ban on sale of military-style assault weapons. That leaves one other venue for Newsom to try — a constitutional convention. There have been none of those since 1787.

Here’s the rub: Newsom was not the first to think of using this tactic to further goals he believes essential to America’s well-being. Another movement has been in the field for 10 full years trying to get approval for a second constitutional convention from the required two-thirds of states (now 34).

That group calls itself Convention of States Action (COS). It has won approvals from 19 legislatures, just 15 shy of its goal. COS says its convention would be “restricted to proposing amendments that will impose fiscal restraint on government, limit its powers and jurisdiction and impose term limits on federal officials and members of Congress” and more.

The existing Constitution does not prohibit such a convention from delving into any other subjects it likes, though, no matter what the COS resolution passed by many states may say. Because COS is the handiwork of ultraconservative activists, fears abound that such a convention could bring amendments calling for a national ban on abortions, an end to free speech and/or freedom of religion and an end to birthright citizenship, among other items.

Into this morass steps Newsom. So far, liberal-led state legislatures have resisted approving COS resolutions. What if some now were to back Newsom’s proposal, though, and approve a convention supposedly limited to gun control issues?

No one knows if the legislative votes for a constitutional convention would be combined, even if they carry very different putative restrictions on what a convention could do. No one knows because nothing like this has happened before. Isn’t a vote for a convention a vote for a convention, no matter what restrictions are listed, since the current Constitution does not limit what any convention could take up?

What is known is that at any such convention, voting would be done by state, not by counts of delegate preferences. In short, tiny Wyoming, with about the same population as the combination of Long Beach and Torrance, just two of the 88 cities in Los Angeles County, would have as loud a voice as California or Texas. Talk about the tail wagging the dog!

And the Constitution sets no time limits on how long any proposed amendment stays in consideration. The last amendment added, the 27th, passed in 1992, about 200 years after it was first proposed. That one forbids members of Congress who approve raises for themselves from collecting the money until after the next election.

In short, the big flaws in Newsom’s plan for a 28th Amendment are the fact it would not get through Congress and that it could facilitate a hyper-destructive and divisive constitutional convention.

It’s far better for the governor — if he’s really interested in limiting firearm access and not merely strengthening his national profile — to campaign for gun controls in individual states rather than seeking a national solution. Otherwise, he could open a completely unprecedented Pandora’s box.

Email Thomas Elias at [email protected], and read more of his columns online at