Taking on the gun lobby

IN TRYING TO understand the power of today’s gun lobby, I’ve found myself looking for answers in earlier issues in US history.

More than 100 years ago, the Anti-Saloon League was successful in ushering in Prohibition because they were able to mobilize small numbers of loyal voters and use them to tip the balance in favor of dry candidates and determine the outcome of elections. The organization came to power when few other single-issue pressure groups existed. They did not have any competition for the minds and hearts of the people, or their elected officials.  Prohibition failed, and it was repealed in 1933, but the ASL, for a brief period, was a political powerhouse.

When it comes to the health hazards of smoking, I witnessed firsthand the changes in the relationship between tobacco and the American people. In my memoir, Turmoil and Transition in Boston, I tell of growing up with a grandfather who was paralyzed by a massive stroke a few years after he had suffered a heart attack.

Known as Lawrence the Barber, my grandfather was a fixture in Roxbury in the years on either side of World War II. He was overweight and smoked. Yet, when he suffered a heart attack in the early 1950s, his doctor, who, family legend has it, was also overweight and also smoked, did not suggest to him that he lose weight or stop smoking. The rest, as they say, is history.

Perhaps as a result, I have followed with particular interest the diminishing importance of tobacco in American life and the diminishing power of the tobacco lobby in the last 50 years.

I remember a time when ash trays were everywhere and doctors would be photographed in advertisements for cigarettes.  People smoked on the subway, people smoked at Fenway Park, people smoked at Little League games. Priests smoked outside of church on Sunday morning. It was an era when cigarettes were distributed to patients in hospital beds, when soldiers would get them effectively for free, when some children would become regular smokers at age 12 or 13.  Powerful members of Congress, the political barons of the era, including some, such as Sen. Sam Ervin of Watergate committee fame, who have been almost elevated to sainthood for actions on other issues, protected the tobacco industry.

What happened?  Research resulted in public sentiment turning against tobacco.  Public sentiment, Lincoln once suggested, is more important than any bill passed by any legislative body or any decision rendered by any court.

The end result is that we are a country where far fewer people smoke than was the case 50 years ago and where far fewer people die from lung cancer, most of which results from smoking.

Neither of these political models, however — the district by district organizing model of the Anti-Saloon League or the public sentiment model that has driven down smoking rates — will succeed in breaking the stranglehold that the NRA continues to have on Congress and a number of state legislative bodies. The gun lobby has a different fact pattern than the temperance movement or Big Tobacco.

The NRA has a well-organized membership, it has a large bankroll, and it has the ability to position elected officials. Somehow or other, the NRA has successfully reinterpreted the Second Amendment in ways which have never been imagined by the courts.  Beginning with the Supreme Court case United States v. Miller in 1939, hundreds of courts have rejected the individual rights view of the Second Amendment.

In 1991, then-Supreme Court Chief Justice Warren Burger, who was appointed by Richard Nixon, stated: “The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud on the American people by special interest groups that I have seen in my lifetime… The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.”

Even when overturning a District of Columbia law restricting the ownership of handguns, in the 2008 Heller case, the great originalist Antonin Scalia, who, history will record died while at a hunting lodge, interpreted the Second Amendment only to provide a right to carry a handgun, referencing “the historical traditions of prohibiting the carrying of dangerous and unusual weapons.”

Justice Stevens, dissenting in the Heller case, wrote as follows:  “Even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership of the sorts of weapons used in the tragic multiple killings in Virginia, Colorado, and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the Court’s decision in Heller.”

Certainly, the automatic weapons which have been used quite effectively in recent mass shootings by those of various backgrounds, and of various mental states, would not be covered by the Scalia interpretation of the Second Amendment. A large percentage of the American people may agree, yet many elected officials do not respond.

In our media-driven era, when members of Congress tweet and send Instagram messages to whoever will read them, what tactics will bring about change?

Lawrence S. DiCara is a partner at Nixon, Peabody and former president of the Boston City Council.

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