Does Gavin Newsom’s gun control Constitutional amendment have a chance?

A check-in on how our federal Constitution gets amended – and the likelihood it happens this time around
A photograph of California Governor Gavin Newsom, surrounded by allies, as he unveils his 28th Amendment to the U.S. Constitution
California Governor Gavin Newsom unveils his 28th Amendment to the U.S. Constitution on June 8, 2023. Photo courtesy California Governor’s Office

California Governor Gavin Newsom has long been outspoken on gun violence and the need for more common-sense gun reform. And early last month, he backed up his words with action: specifically, he proposed an amendment to the U.S. Constitution to limit the reach and scope of the Second Amendment.

“Our ability to make a more perfect union is literally written into the Constitution,” Newsom said in a statement released in June. “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.”

According to the statement, the amendment would raise the federal minimum age to purchase a gun from 18 to 21, mandate universal background checks, instituting a waiting period on all purchases, and banning assault weapons used for war.

The amendment will be tough, if not impossible, to pass. That’s because two-thirds of both houses of Congress have to agree on the language, then three-fourths of states have to agree on the same thing.

“That is really hard to do, especially when the country is very polarized. Our Congress can barely even get a budget passed and raise the debt ceiling and not shut everything down. To get especially a controversial amendment on guns through would be almost impossible,” said Sondra Cosgrove, history professor at the College of Southern Nevada.

Cosgrove pointed to another path, one led by the states. If two-thirds of state legislatures agree on an amendment, they can call a constitutional convention to discuss the language and have Congress create a joint resolution for approval by the conventions.

However, Cosgrove warned this approach could also open the door for some unintended consequences, under Article V of the Constitution.

“There’s no rules,” she said. “It doesn’t say you can only look at one amendment, it doesn’t say once you’re in session, what else are they allowed to do or who gets to be on these commissions? So, it makes people nervous, that if we went down that path that we would lose control of the amending process, and it would be a free for all. So far, we’ve never done it that way.”

None of the current 27 amendments to the Constitution have been proposed through convention. So, Newsom’s proposed amendment would have to go through Congress, which is highly unlikely.

Successful strategies

Cosgrove said amendments have historically come about in bunches, starting with the first Ten Amendments, known as the Bill of Rights.

“The anti-Federalists did not trust the Constitution as it was written and thought it was tyrannical. They wanted it to be mellowed out a little bit,” Cosgrove said. “But they also were saying, ‘OK, we’re looking at the body of the Constitution and we see that white men with property have power, and they’re protected here. What about the rest of us?’”

From there, the Constitution was left untouched until the Civil War ended, when newly-freed slaves needed their rights enshrined. In comes the 13th Amendment.

“The next group are the progressive amendments,” Cosgrove said. “Between 1913-1920, the progressives are able to put in the income tax [16th Amendment], direct election of Senators [17th Amendment], Prohibition [18th Amendment], and women getting the right to vote [19th Amendment]. People look at that and go, ‘Well, it must not be too hard. If you can get four in that many years, it must not be too hard.’

Cosgrove said those amendments got passed because of a 50-state strategy, where people put together working groups in every state to educate the public about the issues, and made the case for these needed amendments. That way, when the measures got to Congress, there was already grassroots support for them.

“So, unless Governor Newsom can show me that he’s got a 50-state strategy, I would think that what he’s talking about his political hyperbole,” Cosgrove said.

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