California Governor Gavin Newsom wants strong gun-control laws in every state of the union. To that end, he proposes to change the US Constitution.
Last month, Newsom outlined a 28th Amendment that would restrict the Second Amendment’s guaranteed right to keep and bear arms. It would do so in four ways: by raising from 18 to 21 the minimum age to purchase a firearm, by mandating universal background checks for gun transactions, by instituting a waiting period before any gun purchase is finalized, and by banning civilians from acquiring assault rifles, which Newsom calls “weapons of war our Founding Fathers never foresaw.”
Amending the Constitution, as the governor acknowledges, is a daunting task. “This fight won’t be easy and it certainly won’t be fast,” he said in a video posted on social media. It has been more than 30 years since the Constitution was last amended, and no amendment has ever been initiated by the method Newsom is attempting: a so-called Article V Convention summoned by at least two-thirds of the states. If he genuinely intends to lead a national campaign for a 28th Amendment, then he has indeed set himself a tough challenge. And I admire and applaud him for taking it on.
To be clear, I don’t support Newsom’s goal of impeding private gun ownership. His amendment’s restrictions would do little or nothing to reduce mass shootings or gun deaths and would make many vulnerable Americans less safe. But assuming Newsom is serious, I give him credit for seeking to constitutionalize gun control the right way: by amending the Constitution, not by filing a lawsuit.
There was a time when liberal and progressive reformers presumed that to effect a permanent change in the law of the land required working through the democratic process. Those who were intent on establishing a new individual right, or investing the government with a new power, wrote new language for the Constitution. In the early 1910s, for example, a priority of the Progressive movement was granting Congress the authority to enact a graduated income tax — authority the Supreme Court had ruled it didn’t have under the Constitution. The result was a successful campaign for the 16th Amendment, which was ratified in 1913. Also ratified that year was the 17th Amendment, which provided for the direct election of US senators by each state’s voters — another innovation of Progressive Era activists.
The late Supreme Court Justice Antonin Scalia often pointed to the 19th Amendment, which was ratified in 1920 and guaranteed women the right to vote, to illustrate how Americans traditionally approached constitutional reform: as a democratic process, not a judicial one.
“It is hard for the modern American to understand why that amendment was needed,” Scalia said in one speech. After all, by 1920 the Constitution already contained the 14th Amendment, which explicitly prohibited denying to any person the equal protection of the laws. “As an abstract matter,” Scalia asked, “what could possibly be a greater denial of equal protection than deprivation of the franchise?” Instead of undertaking a decades-long campaign for women’s suffrage, why didn’t activists simply invoke the Equal Protection Clause and embark on litigation aimed at getting the Supreme Court to declare that denying the vote to women was unconstitutional? Why should a new amendment have been required?
The answer, Scalia explained, is that for most of American history, words in the Constitution were taken to mean what they meant when they were ratified. If new protections were desired, they had to be won democratically, via the amendment process.
Again, this was the liberal/progressive/populist approach for the first century and a half under the Constitution. It characterized the years that followed the Civil War, when the Constitution was amended to ban slavery, establish the citizenship of Black people, require states to uphold due process of law, and prohibit racial discrimination in voting. Even as late as the 1960s, inspired by the civil rights movement, there were successful campaigns to let residents of Washington, D.C., vote in presidential elections, to abolish the poll tax, and to lower the voting age to 18 — all of which were enshrined in new amendments.
But “liberalism began to move away from this populist spirit in the middle of the New Deal,” as the legal scholar Jeffrey Rosen has written, “and, in the process, largely abandoned its interest in amending the constitution.” Gradually the Constitution came to be regarded as a “living” document, one from which judges could conjure new legal rights or deduce new restrictions, obviating the need for the public consensus needed to ratify a new amendment. On topics as varied as same-sex marriage, legislative redistricting, and public-school prayer, far-reaching alterations in the nation’s legal landscape were brought about by appealing to the courts, not to legislators.
Many people might say those changes made the nation more just, more free, or more equal. But as the decades of turmoil that followed Roe v. Wade demonstrated, there is a price to be paid when courts, bypassing the democratic process, dictate drastic changes in the meaning of the Constitution. Amendments adopted the traditional way may not always be wise — the 18th Amendment prohibiting alcohol was pretty dumb — but they have one great virtue: In order to be ratified, they must reflect broad agreement across society.
So there is no snark when I cheer Newsom’s proposal for a gun-control amendment. To many on the left, it goes without saying that America has too many guns, that it’s too easy to buy them, and that “common sense” restrictions on firearms will save lives. But millions of Americans take a very different view of the subject. Newsom will need to win over a considerable number of them if he is going to lead a successful drive to amend the Constitution. If he succeeds, gun controls will be enforced from sea to shining sea. And the legitimacy of those controls will be unassailable.
“This fight won’t be easy and it certainly won’t be fast,” the California governor rightly says. Neither was the 19th Amendment. It took years of effort to win national support for women’s suffrage, but when the fight was won, it was won forever. I don’t think much of Newsom’s objective, but I salute the way he is going after it.