April 12, 2024
Some supporters of stricter gun laws balk at governor's idea of calling a constitutional convention, fearing a runaway process they say could imperil gay, reproductive and voting rights.

California Democrats are so on board with Gov. Gavin Newsom’s call for a U.S. Constitutional amendment to lock in California-style gun restrictions nationwide that 51 state lawmakers have signed on as co-authors to the proposed resolution.

But even fellow liberals who fully support Newsom’s proposal that the U.S. mandate background checks and waiting periods, restrict gun sales to those 21 and older and ban military-style firearms are wary of the untested path the Democratic governor is pursuing — holding a constitutional convention of states — in his longshot bid to enact those restrictions nationally. Such a move, both supporters and opponents warn, could open a Pandora’s box and set off a free-for-all of proposed amendments.

“There is nothing in the Constitution that in any way guarantees that we could have a constitutional convention limited to one topic,” Sen. Scott Wiener, a San Francisco Democrat, said at a Senate Public Safety Committee hearing on the resolution last week. “I’m concerned what a constitutional convention could do.”

The same “extremists” who reject many restrictions on Second Amendment gun rights, Wiener warned, “also would like to rewrite reproductive health access, LBTQ rights; they want to get rid of the separation of church and state, they want to undermine voting rights.”

At issue is Article V of the U.S. Constitution, which lays out two pathways for amending it. Only one of those methods has been used in the adoption of its 27 current amendments, in which Congress by a two-thirds vote in both the House and Senate calls for an amendment, which then must be ratified by three-fourths of the states.

Newsom’s resolution seeks the alternative path, in which the legislatures of two-thirds of the states — 34 of them — ask Congress to call a convention for proposing constitutional amendments, which also then must be approved by three-fourths of the state legislatures or conventions.

But that didn’t stop the Senate Public Safety Committee in a 3-1 vote from sending the resolution to a floor vote of the Senate and then on to the Assembly.

Wiener, who abstained from the vote, wasn’t the only critic from the left, where gun restrictions are popular. Dora Rose, deputy director of the League of Women Voters of California, said the group backs “very strong action to address the plague of gun violence.” But she added, “We’ve got to respectfully oppose a constitutional convention, which could be used by malevolent forces to upend our democracy in a variety of ways that we would live to regret.”

California Common Cause, a good-government group, also opposed the resolution. Laurel Brodzinsky, the group’s legislative director, told the committee it backs the gun rules but shares fears about a constitutional convention. She noted the only historical precedent, the constitutional convention of 1787 that met to consider weaknesses of the new federal government’s Articles of Confederation, ended up writing a new Constitution.

“There simply are not clear legal guardrails in place,” Brodzinsky said. “This historical precedent poses great concern for attempts to limit the scope of any convention in the future and for our basic constitutional civil rights and liberties, which we take for granted.”

Though Newsom cites polls suggesting broad support for the proposed gun restrictions, getting ratification by so many states would still be extremely difficult, given more than half in recent years have adopted laws loosening restrictions on carrying guns in public.

Newsom’s proposed resolution, Senate Joint Resolution 7, carried by Sen. Aisha Wahab, a Fremont Democrat, and Assemblyman Reginald Jones-Sawyer, a Democrat from Los Angeles, includes language stating it only is valid for the purposes of the proposed gun amendments.

But it’s unclear whether that language could stop the freight train of a constitutional convention once started.

“This is open territory,” said Aaron Tang, a constitutional law professor at UC Davis. “We don’t have precedent that we can rely on. There’s no constitutional ground rules delineating how an Article V convention would run. So it would cash out through litigation.”

Tang, offered by Wahab as an expert witness, said he believes there’s a good chance of avoiding a possible “runaway convention.” Courts likely would find that because California lawmakers intended a convention for limited purposes of restricting guns, the state’s call for a convention would be invalidated if other topics were introduced and it would no longer count as a 34th state backing a convention.

But Tang isn’t the only constitutional scholar who’s expressed doubts that a convention could be limited in scope. UCLA law professor Eugene Volokh said he’s “not sure it’s possible” to limit a convention to specified amendments and that once such a convention is convened states could consider “any amendment they think is suitable.”

Beyond the constitutional questions, the proposal drew opposition from gun rights supporters. Sam Paredes, executive director of Gun Owners of California, argued the resolution ironically bolsters the group’s arguments that the state’s gun restrictions are unconstitutional.

The Senate Public Safety Committee’s chair and vice chair meanwhile said their own experiences with gun violence shaped their opposite positions on the resolution.

Rosilicie Ochoa Bogh, a Republican representing Redlands, voted against the resolution, citing concerns about “opening Pandora’s box” with a constitutional convention and that states are currently free to adopt the proposed gun restrictions if they want. But she also noted that Mexico, where her family is from, effectively bans civilian gun ownership yet the streets are ruled by gun-toting gangsters and plagued with shootings.

“They’re living in utter fear,” Ochoa Bogh said, “because law-abiding people cannot protect themselves.”

Wahab, the committee chair whose parents emigrated from Afghanistan to New York in the 1980s, said her father was “murdered via gun violence.”

“I do support the Second Amendment, but at the same time, there has to be guardrails,” Wahab said. “People like myself, who because of the death of a loved one due to gun violence, their lives are changed forever.”

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