Susan Shelley: Gavin Newsom’s 28th Amendment

In George Washington’s farewell address, our nation’s first president spoke about the importance of the people’s power to amend the United States Constitution.

“If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

That was in 1796. The country has long since fallen out of the habit of thinking about constitutional amendments. For the entire lifetime of nearly every living American, the Constitution has been “updated” through U.S. Supreme Court decisions in “landmark” cases. This is why nominations to the federal judiciary are so fiercely contested. It seems as if everything depends on which political party is in control at the moment when a Supreme Court justice leaves the bench.

But that’s not the deal we signed. Article V of the U.S. Constitution contains a process for proposing and ratifying amendments. Now, thanks to Gov. Gavin Newsom, the country may be about to find out exactly how that works.

Newsom is seeking a constitutional amendment to impose, nationwide, a higher minimum age to buy a gun, universal background checks, a “reasonable” waiting period for gun purchases and a ban on what he called “the civilian purchase of assault weapons.”

An amendment to the U.S. Constitution may be proposed in one of two ways — by a two-thirds vote of both the House of Representatives and the U.S. Senate, or by “application of the Legislatures of two-thirds of the several states.” If the latter happens, the Constitution states that Congress “shall call a Convention for proposing Amendments.”

Once an amendment is formally proposed, it goes out to the states for consideration. To be adopted, the amendment must be ratified by the legislatures (or state conventions) of three-quarters of the states.

I’ll do the math for you: it would take the agreement of 34 states to propose an amendment and 38 states to ratify one.

Newsom’s gun-control amendment may be a useful fundraising tool, but otherwise it’s more likely to get laughs than traction. Forty-five of the 50 states have a “right to keep and bear arms” in their state constitutions.

The five states that don’t have a constitutional provision of that type are California, New York, New Jersey, Minnesota, and Maryland. A lot of voters reside in those states, but the size of the population is irrelevant. What matters is the number of states. And it appears to be 45-5 against infringing the right to keep and bear arms.

The vote on the Supreme Court was 5-4 in 2008, when the justices held in District of Columbia v. Heller that the Second Amendment protects an individual right to own a firearm, without depending on service in a militia.

What would have happened if the Heller decision had come out 5-4 the other way, and the Supreme Court had held that individuals do not have the right to own a firearm?

It’s not hard to imagine that 34 of those 45 state legislatures would have passed a resolution demanding a convention to propose a new amendment to override the court’s decision. Then, with the votes of 38 state legislatures, that new amendment guaranteeing the individual right to keep and bear arms would have been ratified, and probably at lightning speed.

Once ratified, a constitutional amendment overrides all conflicting statutes and court decisions.

That’s what Newsom is hoping to do. He would like to override all the federal judges who have upheld Second Amendment rights and knocked down state laws that violated them.

But math is not on his side. The Constitution can be successfully amended only when there is a clear and broad consensus in nearly all states.

One issue that might meet this test is voter ID.

There are currently 36 states with a voter ID law, after Nebraska adopted one for November 2022. So it’s possible that a national voter ID amendment could be proposed by 34 state legislatures, and then sent out to the states for ratification. Fourteen states have no voter ID law, but only a couple of them would have to come over to the majority side in order to ratify a constitutional amendment that requires voter ID in every federal and state election.

California, New York and Illinois, to take just three examples, do not have voter ID laws. But if 38 other states ratified an amendment that required them to implement voter ID in their elections, there would be nothing they could do about it. Constitutional amendments can’t be vetoed or challenged. The president has no role in the process, and neither does the Supreme Court.

The only way to reverse a constitutional amendment is with another constitutional amendment. That is, unless you count the unofficial judicial method of interpreting away the plain meaning of the words, which sometimes happens many decades later, after everybody who voted to ratify the amendment is dead.

Two years after the Supreme Court began to put the original meaning back into the Second Amendment with the 2008 Heller decision, the justices made clear in McDonald v. Chicago that the Second Amendment also applies to the states through the Fourteenth Amendment. Then, with its decision in New York State Rifle & Pistol Association v. Bruen in 2022, the Supreme Court changed the test used by courts to determine whether firearm restrictions are constitutional, tipping the presumption toward rights, not restrictions.

Newsom’s proposed constitutional amendment will draw attention to the process of amending our nation’s fundamental law, opening the door to other proposals on issues where there is wide agreement in the country. Think about anti-surveillance and privacy protection, or school choice. Anytime California’s legislature can be outvoted, there’s hope for the future.

Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley