Liberals and gun-control advocates worry constitutional convention could unleash free-for-all of amendments
California Democrats are so enthusiastic about Gov. Gavin Newsom’s call for a U.S. Constitutional amendment to enshrine California-style gun restrictions across the country that 51 state legislators have signed on as co-authors to the proposed resolution.
Even liberals who fully support Newsom’s proposal that the United States mandate background checks and waiting periods, limit gun sales to those 21 and older, and ban military-style firearms are wary of the untested path the Democratic governor is taking in his longshot bid to enact those restrictions nationally. Both supporters and opponents warn that such a move could open a Pandora’s box 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,” San Francisco Democrat Sen. Scott Wiener said last week during a Senate Public Safety Committee hearing on the resolution. “I’m concerned about what a constitutional convention could do.”
Wiener warned that the same “extremists” who oppose many restrictions on Second Amendment gun rights “also want to rewrite reproductive health access, LBTQ rights; they want to abolish the separation of church and state; and they want to undermine voting rights.”
The issue is Article V of the United States Constitution, which specifies two ways to amend it. Only one of those methods has been used in the adoption of its 27 current amendments, in which Congress calls for an amendment by a two-thirds vote in both the House and Senate, which must then be ratified by three-fourths of the states.
Newsom’s resolution seeks an alternative path in which two-thirds of the states’ legislatures — 34 of them — ask Congress to convene a convention to propose constitutional amendments, which must then be approved by three-fourths of the state legislatures or conventions.
But that didn’t stop the Senate Public Safety Committee, which voted 3-1 to send the resolution to the Senate floor and then to the Assembly.
Wiener, who abstained from voting, was not the only critic on the left, where gun control is popular. The League of Women Voters of California, according to Dora Rose, deputy director, supports “very strong action to address the plague of gun violence.” “We must respectfully oppose a constitutional convention that could be used by malevolent forces to upend our democracy in a variety of ways that we will live to regret,” she added.
The resolution was also opposed by California Common Cause, a pro-good-government organization. The group’s legislative director, Laurel Brodzinsky, told the committee that it supports the gun regulations but is concerned about a constitutional convention. She pointed out that the only historical precedent, a constitutional convention in 1787 that met to discuss the shortcomings 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 raises serious concerns about future attempts to limit the scope of any convention, as well as our fundamental constitutional civil rights and liberties, which we take for granted.”
Though Newsom cites polls indicating widespread support for the proposed gun restrictions, ratification by so many states would be extremely difficult, given that more than half have recently adopted laws loosening restrictions on carrying guns in public.
Senate Joint Resolution 7, introduced by Fremont Democrat Sen. Aisha Wahab and Los Angeles Democrat Assemblyman Reginald Jones-Sawyer, includes language stating that it is only valid for the purposes of the proposed gun amendments.
Related: Read the resolution’s text
However, it is unclear whether that language could halt the freight train that is a constitutional convention once it has begun.
“This is open territory,” says Aaron Tang, a constitutional law professor at UC Davis. “There is no precedent on which we can rely.” There are no constitutional ground rules governing the operation of an Article V convention. As a result, it would profit from litigation.”
Tang, who Wahab has offered as an expert witness, believes there is a good chance of avoiding a “runaway convention.” Because California lawmakers intended a convention for the limited purpose of restricting guns, courts are likely to rule that the state’s call for a convention would be invalidated if other topics were introduced, and the state would no longer count as the 34th state supporting a convention.
Tang, however, is not the only constitutional scholar who has expressed doubts about the scope of a convention. Eugene Volokh, a UCLA law professor, said he’s “not sure it’s possible” to limit a convention to specific amendments and that once such a convention is convened, states could consider “any amendment they think is suitable.”
Aside from constitutional concerns, supporters of gun rights opposed the proposal. The resolution, according to Sam Paredes, executive director of Gun Owners of California, ironically strengthens the group’s arguments that the state’s gun restrictions are unconstitutional.
Meanwhile, the chairs and vice chairs of the Senate Public Safety Committee said their personal experiences with gun violence shaped their opposing views on the resolution.
Republican Rosilicie Ochoa Bogh of Redlands voted against the resolution, citing concerns about “opening Pandora’s box” with a constitutional convention and the fact that states are currently free to adopt the proposed gun restrictions if they so desire. She also mentioned that her family’s home country of Mexico effectively prohibits civilian gun ownership, despite the fact that the streets are ruled by gun-toting gangsters and plagued by shootings.
“They’re terrified,” Ochoa Bogh said, “because law-abiding citizens can’t protect themselves.”
Wahab, whose parents immigrated from Afghanistan to New York in the 1980s, said her father was “murdered via gun violence.”
“I support the Second Amendment, but there must be some constraints,” Wahab said. “People like myself, whose lives have been forever altered by the death of a loved one as a result of gun violence.”