California calls for anti-gun con-con

California has officially applied to Congress to call a convention for amending the Constitution to weaken its Second Amendment. Their resolution of application joins dozens of others, adding to the debate on whether those applications must be alike. It also adds to the debate on the limits, if any, on such a convention.

The California amendment proposal

California seeks to amend the Constitution to negate Supreme Court challenges to four key gun-control principles. Under California law,

1. A person must have attained to the age of twenty-one years before buying any firearm,
2. Any person thus qualified must still wait for a specified period before completing the purchase,
3. No person (at least no civilian) may purchase, own, or carry any firearm belonging to a class, defined by law, of “assault weapons,” and
4. No person may buy a firearm, even privately, without submitting to a background check. (This is the “universal background check” rule.)

Gov. Gavin Newsom (D-Calif.), in June 2023, publicly admitted none of these measures would be sure to withstand court challenge. So he proposed a federal Constitutional amendment to allow States to pass such laws. (Whether the amendment would merely allow States to have such laws on their books, or write such laws into the federal Constitution itself, after the manner of the since-repealed Amendment XVIII, is unclear.)

Last month, Sen. Aisha Wahab (D-Hayward) and Asm. Reggie Jones-Sawyer (D-Los Angeles) introduced a resolution to apply for an Article V convention of States to pass such an amendment. To this they added a provision to let States forbid or restrict the public carrying of guns. (California already forbids concealed carry.) Breitbart published both source articles.

Gov. Newsom has stated that “the Second Amendment is becoming a suicide pact.” Tellingly, the resolution does not specifically call for a repeal of the Second Amendment.

Essentially impossible

The Sacramento Bee consulted one Carlton Larson, Professor of Constitutional Law at the University of California at Davis. He called the passage of such an amendment by an Article V Convention “essentially impossible.”

You don’t have 33 other state legislatures that would be on board with (Newsom’s) proposal. We just don’t get Constitutional amendments without strong bipartisan support.

Breitbart quoted the Los Angeles Times as pointing out the opposite problem with an Article V Convention. Which is, that no one can control such a convention. The LA Times apparently quoted scholars who expressed fears that someone might introduce such amendments as:

• A Human Life Amendment, or:
• An amendment defining marriage as between one adult man and one adult woman, and forbidding the recognition, as “marriage,” of same-sex couples sharing bed, communes, or the like.

On the other hand, the John Birch Society fears that any Article V convention would simply rewrite the Constitution, as the original Constitutional Convention did.

I smelt a rat. Patrick Henry

I have to lament that I cannot bring my mind to accord with the proposed constitution. The concern I feel on this account is really greater than I am able to express. Patrick Henry, letter to George Washington

(Source: American Heritage.)

A thorny issue

An Article V convention is without precedent in American constitutional law. So no one knows whether Congress could count all applications, however phrased, or whether it must count only such applications whose applying legislatures phrase them exactly alike. Dozens of applications are now circulating among the legislatures. True, these applications are not phrased alike – and the California “Right to Safety Amendment” is at cross purposes with the proponents of nearly every other application. But suppose Congress calls a convention after receiving thirty-three applications in aggregate, and not phrased alike? Do the proponents of competing applications go to the Supreme Court for relief? Would the Court act? Could the Court act? Or would the Court say, “Congress, this is your problem, under your authority”?

True enough, at the Convention, the “Right of Safety Amendment” would compete with amendments setting term limits for Congress, requiring the government’s budget to balance, and so on. But far more likely, a well-funded coalition would hijack all delegate selection processes. The resulting convention would dedicate itself to a Constitutional rewrite. And that rewrite could include, among other provisions, one like this:

No person, except a law-enforcement officer, an active-duty military service member, a Very Important Person, or a licensed bodyguard or building or event guard, shall own, discharge, carry, or come into physical contact with a firearm.

This new Constitution might further provide that only a retired or off-duty law-enforcement officer could even get a security license.

Neither Prof. Larson nor any of the experts the Los Angeles Times consulted, seems to have thought about this. But whether someone (George Soros, perhaps) has instructed them to keep their mouths shut pending an opportunity, is unclear.