Justice

The Gun Industry Has Systematically Demolished Regulators And Avoided The Fate Of Cigarettes

CREDIT: Shutterstock/Andrew Breiner

It’s a gruesome cycle that has become all too familiar. On Friday, a mass shooting at a Planned Parenthood clinic in Colorado Springs, Colorado left three people dead and nine more wounded. Despite a history that included domestic assault accusations and a restraining order against him, the shooter was able to obtain an assault weapon.

Over the weekend, President Obama gave an impassioned call for action, saying, “This is not normal. We can’t let it become normal. If we truly care about this — if we’re going to offer up our thoughts and prayers again, for God knows how many times, with a truly clean conscience — then we have to do something about the easy accessibility of weapons of war on our streets to people who have no business wielding them. Period. Enough is enough.”

Gun rights activists, including Colorado Springs Mayor John Suthers (R), on the other hand, warned that it would be “premature” to talk about new gun laws.

In a time when it is virtually impossible to keep track of all of the gun deaths, story after story about these incidents notes that nothing is likely to change and that action on gun violence is almost impossible.

How did this happen? Polls consistently show popular support among Americans for universal background checks for gun buyers and bans on assault-style weapons, but any attempt to pass even commonsense reforms appears dead on arrival.

Such a task is not unprecedented, however, considering the nation has made great strides to reduce another major cause of preventable deaths: Tobacco. In the Mad Men-era of the early 1960s, smoking was ubiquitous — almost half of all adults smoked. Robin Koval, CEO and president of the nonprofit Truth Initiative, remembers a time, not long ago, when people could smoke just about everywhere. “Back in the day, you could smoke on airplanes, in your office, in most public buildings,” she recalled, before the “science behind second-hand smoke became an impetus for major action on clean air laws.”

Even as recently as the 1990s, the tobacco industry wielded enormous influence in state legislatures and in the U.S. Congress, giving it a virtual veto on public policy. A 1989 op-ed by then-Rep. Dick Durbin (D-IL) noted that the tobacco lobby was so powerful and ingrained in Congress that the “decorative wooden leaves carved into the speaker’s rostrum in the U.S. House of Representatives aren’t sprigs of laurel; they’re tobacco.”

But that is no longer the case today, thanks to the actions of Durbin and many others. Between 1965 and 2011, data from the Centers for Disease Control and Prevention (CDC) shows the percentage of American adults who smoke cigarettes dropped from 42 percent down to 19. And in 2009, Congress enacted its first-ever Tobacco Control Act with bipartisan support.

The same is not true for firearm ownership. Over the same period, Gallup polling shows American gun ownership rates have remained largely unchanged and even a modest gun bill in 2013 fell well short of passage. The threat posed by unfettered access to firearms has never been clearer, so why has the gun lobby and industry in America flourished as the tobacco industry became a pariah?

A big part of the answer is that the gun lobby preempted the sort of tactics that anti-smoking activists successfully used to reduce cigarette consumption. After seeing class action lawsuits that forced the tobacco industry to change the way it marketed its product, research by the Surgeon General and the U.S. government helping both discourage use and assist cessation, the creation of smoke-free public places, increased taxes on tobacco deterring use, and many medical professionals helping their patients quit, the gun lobby spent tens of millions to make sure they avoided the same fate. And by changing federal and state laws, it found ways to block every single one of those approaches from being used to undermine the firearm and ammunition industries’ bottom lines.

Here is a look at five key ways advocates were able to hold Big Tobacco accountable for the damage its product was causing — all routes the gun industry has preemptively blocked.

Holding them Accountable

Tobacco

Among the most potent weapons against the tobacco industry was the legal process. While legislators can be defeated or elected with large corporate political action committee contributions, the judicial system is less easy to influence with money. When the industry was held accountable for its practices and products, it not only had to pay for past sins but to change its future behavior.

In the 1990s, after decades of lying about the dangers of smoking and avoiding regulation and punishment, the tobacco industry’s winning streak came to an abrupt end. A 1998 settlement between 46 state attorneys general and the nation’s four largest tobacco companies compelled the industry to pay hundreds of billions of dollars to the states and to end many of its most controversial marketing practices.

One of the most significant impacts of this master settlement was that some of the money went to establish the Truth Initiative, an organization created to use public education to reduce tobacco use among youth and young adults. Its president and CEO Koval told ThinkProgress that at the time of the settlement, 23 percent of high school students smoked. “Since that time, with the advent of the Truth campaign and other things, only 8 percent of young people smoke cigarettes [as of last year].” With the steep decline, she says, it is possible that the effort is now “in the endgame” and that this generation has the power “to be the generation that ends smoking.”

Guns
Opponents of the gun industry quickly seized on the tobacco settlement as an opportunity. A December 1998 New York Times story noted that “more than a dozen cities have either sued the gun industry or are preparing to, in a growing campaign to ultimately win in court the handgun controls that gun interests have kept them from winning in state legislatures and Congress.”

Alex Penelas, then-mayor of Florida’s Miami-Dade County, called the success of the tobacco litigation “a ray of hope” for efforts to “send the bill for gun deaths and injuries to the gun makers.”

In late 1999, the Clinton administration announced it would join the efforts: The Department of Housing and Urban Development (HUD) vowed to pursue a lawsuit against the firearms industry, on behalf of public housing authorities who spent billions annually trying to protect residents from gun violence. Though gun rights advocates howled that these suits were about driving companies out of business, President Clinton said the aim was not to bankrupt manufacturers and dealers but to make them be more careful about “with whom they deal,” change “irresponsible marketing practices,” and make “some safety design changes.”

The gun lobby was unconvinced and one company decried the effort as “tantamount to harassment.”

The approach showed early dividends. In March 2000, Smith & Wesson agreed to a settlement that included a promise that the company would provide safety locking devices, invest in smart gun technology to limit use to the proper owner, limit magazine capacity for its new firearms, cut off dealers and distributors with a history of selling to criminals, and prevent authorized dealers from selling at gun shows where any arm sales are permitted without background checks.

The NRA decried the “Smith & Wesson sell-out” as an “act of craven self-interest.” The group wrote at the time that “the true intent of this agreement is to force down the throats of an entire lawful industry anti-gun policies rejected by the Congress, rejected by legislatures across America, and rejected by the judges who have dismissed their lawsuits in whole or in part nearly without exception.” And it moved swiftly to ensure that others would not follow.

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CREDIT: Dylan Petrohilos

Lisa Graves, executive director of the Center for Media and Democracy, told ThinkProgress that the NRA was “very afraid of the parallel between gun litigation and tobacco litigation, so it preempted that.” Through the American Legislative Exchange Council (ALEC) — the secretive free-market lobbying group that brings together conservative politicians and major corporate interests including the tobacco and gun lobbies — it pushed a “Defense of Free Market and Public Safety Resolution” to hurt Smith & Wesson’s ability to sell to law enforcement.

“ALEC helped to try to punish the one component of the industry that agreed to these measures,” Graves recalled, discouraging local police “from buying guns from Smith & Wesson — for daring to go along with safety [measures] designed to keep kids safe.”

When the NRA’s preferred candidate, George W. Bush, was inaugurated in January 2001, his new HUD secretary Mel Martinez quickly ended the department’s involvement in the lawsuits (the NRA strongly endorsed him three years later in his campaign for U.S. Senate in Florida). ALEC and the NRA worked at the same time to successfully encourage many states to prohibit local lawsuits against the gun and ammo industries.

Next, the NRA and its Congressional allies set about eliminating the threat of state or local action, once and for all. In 2005, Bush signed the Protection of Lawful Commerce in Arms Act, which effectively shielded the gun industry from legal liability when their products are used in criminal and unlawful activities.

Then-Rep. Melissa Hart (R-PA) gave a House floor speech in support of the law and against “anti-freedom” lawsuits, at times repeating the NRA’s talking points verbatim. “Since 1998, dozens of municipalities and cities have filed suits against America’s firearms industry, somehow alleging that the manufacturer of a firearm can be responsible for the acts of criminals. These suits, following the model of the tobacco litigation, attempt to push the gun manufacturers into court to force a settlement, a large cash award, or cessation of a business,” she said. “Firearm manufacturers have a time-honored tradition of acting responsibly. They therefore should not be subjected to these frivolous suits.”

NRA executive vice president Wayne LaPierre lauded it as “the most significant piece of pro-gun legislation in twenty years.”

“What we witness today is the culmination of a seven-year effort that included a comprehensive legislative and election strategy,” NRA chief lobbyist Chris W. Cox said at the time. “We worked hard to change the political landscape to pass this landmark legislation. As always, our members were up for the task. Key electoral victories in 2000, 2002, and 2004 helped pave passage of this law.”

A decade later, the law has been used to stop virtually all efforts to hold gun companies liable in court.

“I think that, had the really powerful litigation run its course, we would have had the same success on guns” as on tobacco, Graves said. “That tobacco litigation was historic… They were able to make some substantial progress and change the future — having information out there, showing how evilly the tobacco companies were behaving. So there was an effort to stop that for guns, which have huge number of deaths and injuries. We haven’t seen the same progress as you would have had these been allowed to go forward. ”

Muzzling the Researchers

Tobacco

In 1949, a TV ad boasted that “more doctors smoke Camels than any other cigarette.” Decades of research on smoking’s health effects was required to counter the industry’s lies about the dangers of smoking, but also to figure out how to help people break their addiction to nicotine.

In 1964, U.S. Surgeon General Luther Terry issued a groundbreaking report on smoking and health, identifying a nearly 70 percent increase in the mortality rate of smokers over non-smokers. A bipartisan array of Terry’s successors continued researching the health impacts and effective ways to reduce smoking. The National Institutes of Health (NIH) has also done extensive research on tobacco and how to “stamp out smoking,” including targeting high-risk groups like LGBT people, hipsters, low-income African Americans, and Native Americans.

Chris Bostic, deputy director for policy for Action on Smoking & Health (ASH), says this research has been “vital” to groups like his. “It’s nice to have facts on our side and we couldn’t do the research ourselves. We’re not scientists; these are big budget research projects.” He noted that funding from the National Cancer Institute and other parts of NIH have “put a lot of grants [on] two sides, to keep people from starting and to get people to want to quit and help them be able to quit.”

Guns
Thanks to a 1996 law, pushed by the NRA and one of its life members, then-Rep. Jay Dickey (R-AR), the federal government does not do the same kind of in-depth research on gun violence and its prevention. The “Dickey Amendment” stipulated that no funds “made available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote gun control.” A 2012 appropriations law put similar restrictions on NIH funding for that year.

Though the NRA claims this was not its intent, the effect of the amendment was not simply that the CDC did not advocate for gun control, it stopped the Centers from doing almost any research on gun violence. And, according to a 2011 New York Times story, before the few remaining firearm-related studies funded by the CDC get published, the NRA gets a heads up “as a courtesy.”

Ted Alcorn, research director at Everytown for Gun Safety, told ThinkProgress in an email that his organization’s research has found that “after the gun lobby’s attacks on the Centers for Disease Control in the mid-1990s, the agency’s funding for public health research on gun violence fell more than 95 percent and publications in the field dried up.” Though groups like Everytown have worked to fill the gap, the lack of federal research has made progress on gun safety even more challenging.

Among those who now worry that the Dickey Amendment may have hampered lifesaving research: Dickey himself. After the Oregon college shootings in early October, Dickey told NPR that it and other similar tragedies have made him regret not making the restrictions on the CDC narrower: “I’ve gone back through it in my mind to say, what could we have done, and I know what we could’ve done. We could’ve kept the fund alive and just restricted the expenditure of dollars.”

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CREDIT: Dylan Petrohilos

Dickey recalled that because of auto safety studies, “the little barricades were set up between the interstate to stop head-on collisions,” which enormously reduced head-on collisions while continuing to allow cars to travel on highways. With more research on preventing gun deaths, he speculated, “we could do the same in the gun industry.”

“The effect is it makes it a lot harder to enact smart gun laws,” Law Center to Prevent Gun Violence senior staff attorney Laura Cutilletta said in an interview. “If you don’t have research showing they’re effective, it makes it harder for legislators who do want these solutions to be able to move them forward — and makes it a lot easier for the NRA and gun rights advocates to poke holes in policy ideas.” She noted that the gun lobby often dismisses proposals by arguing that “there’s no research to prove it works,” but never seems to mention that “there is no research because of their own tactics.”

And when President Obama nominated Dr. Vivek Murthy, a supporter of increased federal funding for gun violence research and of NRA-opposed gun violence reduction measures, to be Surgeon General in 2013, the NRA tried to block him and helped delay his confirmation for nearly a year.

Safe Zones

Tobacco

Today, much of the country has adopted smoke-free workplace protections, which has been a major help in reducing smoking. ASH’s Bostic explained that “smoke-free places has been very successful. Look at a map: the states with more stringent smoke-free air laws (that have been around longest) correlate to low consumption,” he observed. “It’s had such an impact because, one, if people can’t smoke much of their day, it’s much easier to quit — and most smokers (70 percent) do want to quit and have tried but couldn’t — and, two, it de-normalizes smoking. There are places where kids, 15 or younger, have never seen anyone smoke in person, only on TV and movies.”

The tobacco industry has consistently fought these restrictions — often partnering with the “other NRA,” the National Restaurant Association — but they have become the national norm nonetheless.

Guns
The effort to keep workplaces free from guns, on the other hand, has been significantly more challenging. The NRA opposes almost all gun-free zones — even schools.

In addition, it has pushed heavily to prohibit colleges and universities from enacting policies that stop students from carrying guns on campus — attempting to protect what it calls the “right to self-defense.” It boasts that “for the better part of a generation, we’ve been working to eliminate state laws that make it either difficult or impossible to legally carry a concealed handgun for protection while away from home. When we started, 40 states had those kinds of laws. Today, only eight states and the District of Columbia fit that category. Of course, we’re continuing to try to get that number to zero.” ALEC has pushed to eliminate the restrictions in the remaining states, through a model bill for state legislatures called the “Campus Personal Protection Act.”

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CREDIT: Dylan Petrohilos

After each mass shooting, it has become the norm for gun-rights advocates to suggest that “gun-free zones” are to blame for the death toll. The standard line from the NRA’s LaPierre has been that “the only thing that stops a bad guy with a gun is a good guy with a gun,” and one pro-gun Colorado legislator argued, “when you have a gun-free zone, it’s like saying, ‘Come and get me.'” A 2012 Mother Jones examination of mass shootings found this argument to be largely false, for even as the NRA has successfully reduced gun-free zones, armed “good guys” have simply not taken out mass shooters. Still, at places like the University of Texas, people carrying dildos will soon be punished, while those carrying guns into classrooms will not be.

While smoke-free zones have kept millions of Americans safe from secondhand smoke and reduced smoking, the NRA has opposed gun-free zones in airports, churches, government buildings, and even bars.

Cost

Tobacco
ASH’s Bostic says one thing has proven “far and away the most effective and easily implemented interdiction to reduce tobacco consumption,” especially among kids: Tax increases.

As of October 2015, the average state tax on a pack of cigarettes is $1.60 per pack. The federal government adds another $1.01 per pack in taxes, bringing the average price for a 20-cigarette packet up to about $6.25. For a pack-a-day smoker, the expense would be more than $2,000 annually, a deterrent for many.

Bostic notes that this deterrent is especially helpful at keeping those under age 18 from becoming regular smokers. “If they’re underage, [they typically] go to places that will sell cigarettes without an ID, have older siblings or friends buy for them, or steal them from parents.” The higher the cost per pack, the less likely they’ll have the money to buy cigarettes illegally and the more likely parents will notice a half-a-pack missing, he observed.

As prices go up, smoking rates decrease. And the states with the higher taxes on cigarettes almost always have lower sales than states with lower cigarette taxes.

Guns
Comedian Chris Rock has famously joked that the solution to gun violence is making bullets less affordable. “I think all bullets should cost five thousand dollars… five thousand dollars per bullet… You know why? ‘Cause if a bullet cost five thousand dollars there would be no more innocent bystanders.”

While no U.S. jurisdiction has yet tried Rock’s plan, localities like Cook County, Illinois and Seattle have attempted to reduce gun violence by enacting sales taxes on guns and/or ammo. The NRA denounced these efforts as “misguided and burdensome” and ineffective penalties on “law-abiding gun owners,” rather than criminals who “don’t legally purchase firearms.” (A comprehensive analysis by Mayors Against Illegal Guns found that most guns used in recent mass shootings were, in fact, purchased legally.)

The National Shooting Sports Foundation, the trade group for the gun industry, suggested that taxing firearms is not even constitutional. “The Seattle ordinance is nothing but a ‘poll tax’ on the Second Amendment and an effort to drive Seattle’s firearms retailers out of business,” its senior vice president and general counsel opined in August. His group and the NRA have filed a lawsuit to try to block the tax.

Perhaps stronger than the “poll tax” argument is the groups’ claim that the city of Seattle does not have the legal authority to pass any laws regulating firearms, thanks to something called “preemption.” The gun lobby, with the help of ALEC, has gotten the state of Washington and all but a handful of other states to pass laws blocking local governments from enacting any local regulations relating to guns.

Gun preemption map

States with gun preemption laws (in orange)

CREDIT: Grassroots Change

The Center for Media and Democracy’s Graves explained that urban areas often have an “increased sense of urgency to do something about the gun violence plaguing cities and not necessarily smaller towns.” While the NRA and its allies might not be able to win a majority in these areas, they instead try to overrule them at the state level, “on the bet that the legislators downstate or upstate from more rural areas” would be more gun-friendly. The bet worked in all but seven states.

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CREDIT: Dylan Petrohilos

Mark Pertschuk, director of Grassroots Change and its Preemption Watch project, told ThinkProgress that this approach was not invented by the gun lobby. “State preemption, as a national strategy for an industry, was invented [in 1985] by the tobacco industry when they succeeded in passing state preemption of local smoking ordinances in Florida in a law, cynically called the Clean Indoor Air Act,” he said. Localities were no longer permitted to pass or keep existing restrictions tougher than the state law.

And, he notes, it is not just the gun lobby that is pushing for state preemption, but an array of other sectors, including alcohol, energy, and others, all actively opposed to tougher health and safety protections. “Although the issues are different — fracking couldn’t be more different than firearms — the strategies are for all practical purposes identical,” Pertschuk said. “Not similar… identical.”

While it appears unlikely to pass in the current Congress, Rep. Nydia Velázquez (D-NY) recently filed a bill to impose a $100 federal tax on all firearms. Just 12 members, all in the Democratic minority, have co-sponsored it so far.

Doctors

Tobacco
The final major component in tobacco use reduction, according to Bostic, is the conversation between patients and medical professionals about smoking.

“Talking about smoking [with doctors and nurse practitioners] is a big predictor of willingness to quit and success in quitting,” he explained. “It has to be more than just saying ‘you shouldn’t smoke,’ but also saying, ‘here’s what you can do, here’s how I can help, here’s what I can prescribe.'” The National Institutes for Health’s smokefree.gov website urges smokers to “talk to your doctor or pharmacist about quit options.”

According to the CDC, research shows that counseling and medication “are both effective for treating tobacco dependence, and using them together is more effective than using either one alone.”

Guns
While the conversations doctors have with patients about smoking relate to cessation and the ones they have about guns relate to safety, the Law Center to Prevent Gun Violence’s Cutilletta says they are no less important. “According to one study, 64 percent of individuals who received verbal firearm storage safety counseling from their doctors improved their gun safety practices,” she said.

“It’s not about having guns,” Cutilletta insisted, “it’s about storage. How is the gun stored? Is it in a home with children? Loaded or unloaded? Locked? Is ammunition stored separately? That’s the kind of question doctors can ask and talk about.”

But, with the support of the NRA, Florida’s legislature passed legislation in 2011 to chill even those conversations. The Privacy of Firearm Owners Act serves as a statewide gag-rule, prohibiting doctors in the Sunshine State from bringing up guns with their patients. In addition to insisting that “inquiries regarding firearm ownership or possession should not be made,” the law also prohibits the medical community from discriminating against patients on the basis of “firearm ownership or possession” — affording gun owners a public accommodation protection the state does not even afford LGBT people — and allows for disciplinary action for doctors who violate its provisions. Other states have contemplated similar laws and taken smaller steps, though none have gone quite as far as Florida.

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CREDIT: Dylan Petrohilos

The nonprofit National Physicians Alliance, which fights for professional integrity and health justice, objects vociferously to the attempts to impede “free speech between patients and physicians.”

Dr. William Jordan, the alliance’s president, told ThinkProgress that his medical students often are wary of uncomfortable conversations with patients about topics like sexual history and gun ownership. “We need to overcome the discomfort,” he said, “and when you have a law on the books that threatens taking away someone’s medical license or other penalties, it has a chilling effect on whether people are willing to go there with their patients.” He pointed to the oil and gas industry use of similar tactics to restrict what Pennsylvania doctors can discuss with patients regarding the oil and gas extraction method commonly referred to as fracking.

Jordan also noted that this is one area where the aforementioned lack of research has been evident: “We don’t have research funding on these things to collect data, to draw clear conclusions [on the Florida law’s impact]. We don’t have polling data to know how many practicing physicians know about the law, even.”

Grassroots Solutions?

Chris Bostic, deputy director for policy for Action on Smoking & Health (ASH), noted that the decline in smoking rates in recent decades has resulted from a series of factors. “The overriding thing,” he told ThinkProgress, is that “there is no silver bullet, no one policy or regulation that solves the tobacco epidemic. It’s a recipe, not a menu. States don’t go and choose one, [you] have to do all to really have an impact.” But the gun lobby has gone to great lengths to take every item in the recipe off the shelves.

Jordan believes that the only way to reduce gun violence is through grassroots organizing. “Unfortunately, the tragedies that make big news come periodically and spur some action, but not necessarily enough to keep a sustained effort going. It’s really up to community leaders, at the local level, to be going to elected representatives and talking about these issues.”

But Grassroots Change’s Mark Pertschuk warns that every step the gun lobby takes makes it harder for citizens to mobilize. “By preempting local authority, what you’re really doing is taking away any chance of building a powerful grassroots movement. In a handful of places like Hawaii, California, and New York, where there isn’t preemption, there are powerful and successful grassroots movements on guns. But there aren’t powerful movements in almost any of the other states.”

Without the ability to use the tools that worked against tobacco, activists “have no purchase.” The only way to make sure this does not happen with other health and safety issues, Pertschuk noted, is for citizens to educate their state legislators “about why preemption is so bad,” and then to work “proactively, at local level, on supporting democracy.”