Irked by Congress’ failure to enact the gun control laws he favors, California Gov. Gavin Newsom is proposing a “28th Amendment” that would “permanently enshrine” those policies in the U.S. Constitution. This transparently partisan publicity stunt is wholly impractical and raises more questions than it answers. But Newsom’s pitch for it nicely illustrates the dishonesty, emotionalism, divisive rhetoric, illogic, and magical thinking of politicians who promise that their half-baked gun control schemes will rescue America from fear of deadly violence.
In a video he posted on Twitter and the website of his Campaign for Democracy, Newsom, a Democrat, portrays his amendment as a way of uniting sensible Americans across the political spectrum. But he also lays into “NRA-owned politicians” (illustrated by footage of Florida Gov. Ron DeSantis and Texas Gov. Greg Abbott), whom he implicitly charges with sacrificing innocent people on the altar of that organization’s gun cult.
“They tell us we can’t stop these massacres,” Newsom says. ”They tell us we have to stand by and watch tragedy after tragedy unfold in our communities. They say we can’t stop domestic terrorism without violating the Second Amendment and that ‘thoughts and prayers’ are the best we can do. I’m here to say that’s a lie.”
Who are “they”? The tweets that Newsom uses to illustrate “thoughts and prayers” leave no doubt. “They” are Republican governors and members of Congress who refuse to embrace Newsom’s gun control agenda. Might their disagreement with him be based on sincere concerns about the effectiveness and constitutionality of his proposals? Newsom never even entertains the possibility.
Newsom says his amendment “permanently enshrines four additions to the laws of our land.” It “raises the minimum age to purchase a firearm from 18 to 21, because if you can’t buy a beer, you shouldn’t be able to buy a gun”; “mandates universal background checks to prevent truly dangerous people from purchasing a gun that can be used in a crime”; “institutes reasonable waiting periods for all gun purchases”; “bans civilians from buying assault rifles—those weapons of war our founding fathers never foresaw”; and “guarantee[s]…states the ability to enact common-sense gun safety laws while leaving the Second Amendment intact and respecting America’s gun-owning tradition.”
That’s actually five additions, not four, and the last one is especially vague and open-ended. Although Newsom insists that his plan would “leav[e] the Second Amendment intact,” limiting the right to arms is the whole point of the proposal, which would authorize restrictions that federal courts otherwise might deem unconstitutional.
As Newsom notes, several of the policies he mentions poll well. The video cites an April 2023 Fox News survey in which 81 percent of respondents favored raising the purchase age for guns, 87 percent favored requiring background checks for all firearm sales, 77 percent favored “requiring a 30-day waiting period for all gun purchases,” and 61 percent favored “banning assault rifles and semi-automatic weapons.”
At the same time, however, just 43 percent of the respondents agreed that “passing stricter gun control laws would make the country safer,” which suggests that many avowed supporters of these policies do not have much faith in them. There is good reason for that, as the debate over banning “assault weapons” illustrates.
That proposal, which Democrats overwhelmingly supported and Republicans overwhelmingly opposed, produced the starkest partisan divide in the gun control section of the Fox News poll. Support for banning “assault weapons” also depends on how the question is worded and tends to fluctuate over time. Gallup’s current question, which it has used since 1996, asks, “Are you for or against a law which would make it illegal to manufacture, sell or possess semi-automatic guns known as assault rifles?” The “for” group peaked at 59 percent in 2000, hit a low of 36 percent in 2016, and had risen to 47 percent by 2019.
The results of a March 2023 Monmouth University survey were similar: Just 46 percent of respondents favored “banning the future sale of assault weapons,” while 49 percent were opposed. Counterintuitively, the Fox News survey, which put support 12 points higher, asked about a much broader policy, banning not only “assault rifles” (whatever those might be) but also “semi-automatic weapons,” a category that covers many widely owned firearms, including hunting rifles and the handguns that the Supreme Court has described as “the quintessential self-defense weapon.” Those guns presumably are not what Newsom has in mind when he talks about “weapons of war our founding fathers never foresaw.”
What does he have in mind? It is hard to say without seeing the text of his “28th Amendment.” But H.R. 698, a bill aimed at reviving the federal “assault weapon” ban that expired in 2004, includes eight pages of guns that it specifically prohibits, plus 95 pages of guns it specifically allows. That is a lot of pages for a constitutional amendment.
In the interest of concision, Newsom may prefer the bill’s more general definitions of “assault weapons.” There are three of those: one for rifles, one for shotguns, and one for pistols. A semi-automatic rifle qualifies as an “assault weapon,” for example, if it accepts detachable magazines and includes any of several specified features, such as a folding or adjustable stock, a pistol grip, or a barrel shroud.
The general definitions still take three pages to lay out, which again would be unprecedentedly long for a constitutional amendment, even without considering the other four things Newsom wants to accomplish. But this problem is unavoidable because banning “assault weapons” without defining the term would be meaningless. And the definitional issue goes to the heart of the rationale for the policy, which purports to target guns that are uniquely suitable for mass murder.
Contrary to that pretense, removing the prohibited features has no impact on a gun’s basic functionality: It still fires the same ammunition at the same rate with the same muzzle velocity. Even President Joe Biden, who supports reviving the federal ban, has conceded that the changes it required left guns “just as deadly.” If so, you might wonder, what is the point?
The other restrictions that Newsom proposes adding to the Constitution likewise have little to recommend them. Expanded background checks are ill-suited to stopping mass murderers, who typically do not have disqualifying records, and ordinary criminals, who generally obtain guns from sources that would be unaffected by a new law (or even a new constitutional amendment). Raising the purchase age for guns might (or might not) stymie some 18-to-20-year-old killers, but only at the cost of disarming many other young adults who, according to federal courts that Newsom is keen to neutralize, have just as much right to self-defense as slightly older Americans do. Waiting periods entail similar tradeoffs: They may stop some hotheads from buying guns before they have had enough time to calm down, for example, but they may also prevent potential victims of those hotheads from defending themselves.
The merits of the policies that Newsom wants to “permanently enshrine” in the Constitution are hotly contested. The fact that they look popular in polls does not mean they are wise or just, let alone that they are consistent with the Second Amendment. By appealing directly to the sentiments that people express in opinion surveys, Newsom hopes to override not only legislators, whose job in a representative democracy goes beyond mindlessly echoing their constituents’ views, but also judges, whose job in a constitutional republic requires them to defy the will of the majority when it conflicts with the law.
Hopes is probably too strong a word for what Newsom is doing. “This fight won’t be easy,” he concedes, which is putting it mildly. Convening a constitutional convention, the route that Newsom favors, requires approval from two-thirds of state legislatures, many of which are controlled by the same heartless Republicans he portrays as entirely unfazed by the murder of schoolchildren. If they stubbornly refuse to enact the policies Newsom wants, why would they go along with his plan to constitutionalize those policies?
Assuming Newsom is serious (which seems highly doubtful), he wants to treat the U.S. Constitution as a vehicle for detailed public policies rather than a framework that constrains those policies. This would be only the second or third time in U.S. history (depending on whether you count the income tax) that the Constitution was amended to restrict freedom rather than protect it.
As Newsom sees it, he is actually defending freedom: He urges Americans to “reclaim our freedom from fear.” By that he means they should trade freedom for the illusion of security, trusting the government to “enact common-sense gun safety laws” that will somehow stop crime without affecting the right to keep and bear arms. This is precisely the sort of demagoguery that the Constitution was designed to frustrate.