Give Americans the gun restrictions they want

Picture: ANA File – People hold signs while protesting the visit of United States President Donald Trump following a mass shooting in Dayton, Ohio in 2019. California Governor Gavin Newsom has proposed an amendment to the US Constitution to enshrine several popular restrictions on gun purchases. Although it is a good idea, it probably won’t succeed the writer says.

By Francis Wilkinson

In the wake of another spate of mass shootings, including in Philadelphia on July 3, in which the alleged shooter fired randomly at human targets on a city street, perhaps it’s time to consider new ideas.

Here’s one: California Governor Gavin Newsom has proposed an amendment to the US Constitution to enshrine several popular restrictions on gun purchases. The proposal is practically futile and politically unworkable. It’s also a good idea.

Interestingly, given the fantastical odds of gaining support for his amendment from the 38 states necessary to adopt it, Newsom’s goals are exceedingly modest. The proposed amendment would raise the federal minimum age to purchase a firearm to 21 from 18; require universal background checks; institute a “reasonable” waiting period for all gun purchases; and ban the purchase of the semiautomatic rifles, such as the AR-15, commonly called assault weapons.

Gun violence, which is the leading cause of death of American children and teens, is widely recognised as a crisis in the US, which has levels of gun violence, including mass shootings, unknown in peer nations. But gun law is also in crisis.

As the Republican coalition has grown more aggressively counter-majoritarian, the party has abandoned consensus positions on controversial issues and increasingly adopted the agendas of its most extreme factions on abortion, LGBTQ rights, environmental protection, conservative Christian primacy, public schooling and other issues. Nowhere is this more evident than on gun policy.

In the 21st century, Republican state legislators have routinely eliminated the most rudimentary restrictions on gun purchases and possession, which are intended to make it harder for dangerous men to inflict harm. Meanwhile, the Republican bloc on the US Supreme Court has re-engineered constitutional law to reflect the vision of the GOP’s extremist gun wing.

In 2008 – more than two centuries after the constitution was ratified – the court created for the first time an individual right to bear arms. In his ruling, Justice Antonin Scalia waded through the contradictory flotsam of American history, collecting random stuff that sounded good while ignoring the rest. Conservative Judge J Harvie Wilkinson III (no relation) lamented that the majority’s shaky 5-4 ruling was an example of legislating from the bench and would encourage others to “seek to press their political agenda in the courts”.

Yet many gun-safety advocates, devoted to incremental progress on a highly polarised issue, tried to accommodate themselves to the ruling, proclaiming that Scalia’s muddled decision in District of Columbia v. Heller would nevertheless allow for “common-sense gun laws”. If nothing else, states run by Democrats, such as California, would still be able to adopt more stringent regulations and reap the benefits of relatively lower gun-violence rates.

The Supreme Court’s newly Trumpified majority has dashed such hopes. In theory, three judges appointed by a twice-impeached and subsequently twice-indicted - so far - executive who was elected with a minority of the popular vote might have cause to temper their ambitions. Modesty, however, is not a Trumpist value. The GOP bloc might as well be a board meeting of the National Rifle Association.

In his 2022 ruling in New York State Rifle & Pistol Association Inc v Bruen, Justice Clarence Thomas marshalled his GOP peers to extend Scalia’s Heller decision outside the home, rescinding restrictions on gun carrying in even the most densely populated areas of New York City.

As Stanford University Law School professor and gun violence researcher John Donohue said, “In turning these states into ‘right-to-carry’ states that essentially give anyone (other than a narrow class of prohibited possessors) the right to carry handguns outside the home, the Court determined that its judgment about gun policy trumped the legislative determinations based on strong empirical evidence that promiscuous gun carrying will elevate violent crime.”

In its next term, the GOP bloc will decide whether to eliminate a “narrow class of prohibited possessors” by permitting domestic abusers – arguably the most dangerous people in the nation when armed – to possess firearms no matter how violent their personal history.

If the Republican bloc hews to the history standard that it established in Heller and Bruen, it’s hard to see how we won’t soon have a constitutional right for wife beaters and girlfriend stalkers to wield semiautomatic tools of intimidation and violence. (There were no laws against domestic abusers possessing firearms in the 1780s or the 1860s, the two eras that the court has decided should dominate the US in perpetuity.)

With a handful of right-wing judges making gun laws for California’s 39 million residents, essentially enshrining Mississippi and Arkansas as the national gold standard, Newsom is both highlighting the policy insanity and beginning the long process of building support to overthrow minority rule.

His proposed amendment is so modest that it would hardly revolutionise gun policy even if it were adopted. The modesty, of course, is the point. If the Supreme Court prohibits even minimal, logical and mostly popular gun-safety provisions, then the preservation of both national sanity and human life requires a more aggressive approach to an institution that has gone dangerously awry. Newsom’s constitutional amendment is surely a dead end. But it’s also a welcome bid to reclaim government of, by and for the people.

Francis Wilkinson is a Bloomberg Opinion columnist covering US politics and policy. Previously, he was an editor for the Week, a writer for Rolling Stone, a communications consultant and a political media strategist.

This article was published in the Washington Post