Gov. Newsom’s call for a constitutional convention is a well-intentioned, terrible idea | Opinion

Gov. Gavin Newsom is right that there is a need to modify the Second Amendment to allow for more gun regulation. But his call for a constitutional convention is seriously misguided and opens an unprecedented, dangerous door for no likely gain as no constitutional amendment to change the Second Amendment is likely to be ratified by three-fourths of the states.

The premise of Newsom’s call is right: Gun violence takes a terrible toll, and the Supreme Court’s recent decisions have made the Second Amendment a significant obstacle to many types of gun regulations. But the governor ignores a large part of the problem, which is the lack of political will, in Congress and in many states, to adopt meaningful gun control. If laws cannot be adopted, a constitutional amendment is not going to happen.

Newsom’s new solution is to call for a constitutional convention to propose a revision of the Second Amendment. Article V of the Constitution provides two ways to amend the document: The first, which has been used for all 27 amendments that have been adopted since 1787, is for two-thirds of both houses of Congress to pass an amendment. It’s deemed ratified if approved by three-fourths of the states.

Opinion

The other mechanism for amendments created by Article V has never been used. It allows two-thirds of the states to call for a constitutional convention. Congress convenes this, and what it proposes is deemed ratified if approved by three-fourths of the states.

There are many unanswered questions about this procedure because it never has been used. Is the convention limited to the single topic, such as modifying the Second Amendment? Or could it propose other amendments or even a wholesale revision of the document? After all, the constitutional convention that was convened in 1787 was intended to modify the Articles of Confederation, and, on its own, decided to scrap the document and write a whole new Constitution.

There are also major unanswered questions about how the constitutional convention called by Congress would be constituted and how it would operate.

This not the first call for a constitutional convention under Article V. As many as 29 states have passed resolutions calling for a constitutional convention to propose an amendment requiring that the federal government have a balanced budget. This is a terrible idea that would decimate social programs at the federal level, keep the government from meeting emergencies and prevent using monetary policy to benefit the economy.

Progressives have opposed this, in large part, based on the argument that it’s too risky and uncertain to use the mechanism of a constitutional convention. Newsom’s proposal undermines this concern and could provide fuel for more states to call for a constitutional convention for a balanced budget.

The question must be: What is to be gained by Newsom’s approach? Given the political realities, it seems highly unlikely that legislatures in 33 states would heed Newsom’s call and pass resolutions for a convention to amend the Second Amendment, especially since a majority of the state legislatures are controlled by Republicans. Even if this did happen, the amendment would have to then be ratified by 38 states, which is politically impossible.

Particularly baffling about Newsom’s proposal is that everything he is suggesting could likely be done now by Congress or by individual state legislatures. His proposed 28th Amendment to the Constitution would raise the federal minimum age to buy a firearm from 18 to 21; mandate universal background checks; institute a reasonable waiting period for all gun purchases; and ban civilian purchase of assault weapons. None of these types of regulations have been found by the Supreme Court to violate the Second Amendment. Therefore, a constitutional amendment is not needed to accomplish these policies.

I share Newsom’s frustrations with the lack of political will for gun regulation and with the Supreme Court’s interpretation of the Second Amendment to protect gun rights. But his call for a constitutional convention is not the answer. It will not succeed in amending the Second Amendment, and it opens unprecedented doors that should remain closed.

Erwin Chemerinsky is the dean and a professor at the UC Berkeley School of Law.