Newsom’s Gun Regulation Hail Mary: Could His Constitutional Amendment Actually Happen?

No one would argue that California is free from the gun violence epidemic that afflicts the entire United States. And yet, even with an average of  higher than 3,000 Californians per year fatally wounded by guns—according to five years of Centers for Disease Control data assembled by the gun safety group EveryTown—the state ranks as one of the least dangerous in the country when it comes to firearm deaths.

Of the 50 states,  California ranks 44th with an average of 7.7 gun deaths per 100,000 people, according to the data. The national average is over 13 deaths per 100,000. California also has “the strongest gun safety laws in the nation,” according to the Giffords Law Center, a gun safety advocacy group.

On June 8, Gov. Gavin Newsom announced a push to take California’s approach to gun regulation nationwide, proposing what would be the 28th Amendment to the United States Constitution—an amendment that, were it to pass, would create a national ban on civilian purchase of assault weapons, universal background checks for gun buyers, a “reasonable” waiting period for gun purchases (California currently imposes a 10-day waiting period) and a minimum age of 21 for buying a gun.

Newsom’s gun amendment would likely be the first that would need to be proposed by a Constitutional Convention, making its chance of becoming reality even more remote. 

According to national statistics compiled by the Gun Violence Archive, as of June 8, the day of Newsom’s announcement, 18,557 people have died in the U.S. from gun violence in 2023. Of those deaths, 57 percent came by suicide with the rest resulting from murders, unintentional shootings, police shootings and self-defense. There have been 118 children age 11 and younger killed by guns in 2023, and 663 teens ages 12 through 17.

“This is insane. It’s absolute insanity,” Newsom told the news site Politico. “And the biggest and most insane thing we can do is the same old BS and just point fingers.”

Courts Block Gun Regulations

Newsom told Politico that amending the Constitution was, in his view, the only way to enact gun reforms, because even when state legislatures pass laws regulating guns, the court system often thwarts their legislation. According to a study by the site Visual First Amendment, of the 12 U.S. federal district courts, nine have been historically dominated by conservatives at least since the World War II era.

“I don’t know what the hell else to do,” the governor told the publication. “I don’t know what else is the answer.”

In 2022, in its first gun rights decision since 2008, the U.S. Supreme Court ruled that Americans have the Constitutional right to carry guns in public, striking down a New York state law that required applicants for “carry” permits to state specific reasons why they would need to be armed in public spaces.

And in 2021, a federal judge in California struck down the state’s ban on assault weapons that has been in place since 1989. A higher court reversed his ruling, but the same judge was set to rule sometime this year on another lawsuit that would give him a second chance to toss out the 34-year-old ban.

“I don’t know what the hell else to do,” the governor said. “I don’t know what else is the answer.”

A state appeals court in May of 2023 upheld the assault weapons ban, saying that the Supreme Court ruling from the previous year did not apply to any type of firearm without exception. Assault weapons such as the infamous AR-15 rifle are not covered by the U.S. Supreme Court’s ruling, the California court held.

In another federal court setback to California’s gun laws, a judge ruled in March 2023 that recently passed rules regulating the types of new guns that may be sold in the state were unconstitutional. The judge wrote that the rules, which require guns to be sold with three specific safety features, would have a “devastating effect” on Californian’s ability to buy “state of the art” guns.

And in February 2023, a federal district court ruled that a U.S. law barring persons convicted of domestic violence from owning guns was unconstitutional. The Department of Justice appealed the ruling to the Supreme Court, noting that the risk of a domestic or intimate partner violence incident escalating to homicide increases when the perpetrator has access to a gun.

Could Newsom’s Constitutional Amendment Really Happen?

But is amending the Constitution even possible? Especially for an issue as politically divisive as gun legislation? Newsom’s gun amendment would also likely be the first that would need to be proposed by a Constitutional Convention, making its chance of becoming reality even more remote. 

The Constitution’s first 10 amendments, known as the Bill of Rights, were ratified on Dec. 15, 1791. In the ensuing 231 years, only 17 more amendments have passed—out of more than 11,000 proposed. And one of those, the 21st, was enacted solely to repeal an earlier amendment—the 18th which banned alcoholic beverages and was better known as “prohibition.”

Not only are Constitutional amendments rare, even those that pass can take a long time. No amendment has taken effect since May 17, 1992, when the 27th Amendment was ratified. But that amendment, preventing Congressional pay raises from taking effect until an election takes place, was originally proposed in 1789—in the same package of amendments as the Bill of Rights. 

The procedure for passing amendments is straightforward enough, and is spelled out in Article V of the Constitution, but of course it’s not easy. An amendment must be passed by both the House and Senate by a two-thirds majority in each. That would be difficult enough in today’s climate, when Democrats in the Senate—including three independents who caucus with Democrats—hold just 51 of the 100 seats. And in the House,  Republicans hold a slim majority, with 222 seats to 212 for Democrats. 

Of the 28 states with Republican-controlled legislatures, 23 received a grade of F for failure in an evaluation of their gun regulations by the Giffords Law Center.

The seeming impossibility of collecting a two-thirds majority in favor of Newsom’s gun amendment in either house, much less in both as required, is why his “28th Amendment” would need to be proposed by what is generally known as an “Article V Convention.” Under Article V, two-thirds of the 50 state legislatures (that is, 33) would need to vote to call the convention. 

But that’s just the beginning of the process. Whether it passes both houses of Congress or an Article V convention, an amendment must be ratified by popular vote on a state-by-state basis, with three-fourths of all states, 38 out of 50,  required to vote in support of the amendment. 

‘Red’ States and Newsom’s Gun Amendment

Unfortunately for Newsom’s proposed amendment, even calling an Article V convention on the gun issue appears to be, at best, a longshot. Of the 49 partisan state legislatures, that is, those whose members are elected by party affiliation (Nebraska is the lone nonpartisan legislature), 28, or 57 percent, are controlled by Republicans. 

Of those 28 states with Republican-controlled legislatures, 23 received a grade of F for failure in an evaluation of their gun regulations by the Giffords Law Center. The only Democratically controlled state to get slapped with an F-grade was Maine. California was one of only two states nationwide to get a straight A, along with New Jersey.

In other words, with only 22 Democratically controlled state legislatures, even calling an Article V convention to propose the Newsom gun amendment would require that 11 Republican states somehow get on board.

Newsom will be reaching out to those Republican-controlled states next week, however. On June 12, he is scheduled to appear on the Fox News Network where he will be interviewed by prime time host Sean Hannity. Newsom’s choice to appear on the staunchly right-wing network may seem odd, but in April the Democratic governor confessed to an interviewer that he watches Fox programming “every night.”