How American Corporations Had A 'Hidden' Civil Rights Movement Law professor Adam Winkler says that in the past 200 years, businesses have gone to court claiming constitutional rights that were originally intended for people. His new book is We the Corporations.
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How American Corporations Had A 'Hidden' Civil Rights Movement

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How American Corporations Had A 'Hidden' Civil Rights Movement

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How American Corporations Had A 'Hidden' Civil Rights Movement

How American Corporations Had A 'Hidden' Civil Rights Movement

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Law professor Adam Winkler says that in the past 200 years, businesses have gone to court claiming constitutional rights that were originally intended for people. His new book is We the Corporations.

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. Here's a couple of memorable moments from the 2012 presidential campaign.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED MAN: Corporations...

MITT ROMNEY: Corporations are people, my friend. We can raise taxes that - of course they are. Everything corporations earn ultimately goes to people. So...

(SOUNDBITE OF ARCHIVED RECORDING)

BARACK OBAMA: I don't care how many ways you try to explain it. Corporations aren't people. People are people.

GROSS: Those comments from Mitt Romney and President Obama reflect a debate inspired by the Supreme Court's Citizens United ruling which held that corporations had a First Amendment right to express their views through unlimited spending to influence political campaigns.

Our guest, UCLA law professor Adam Winkler, says in a new book that for more than 200 years, corporations have gone to court claiming constitutional rights that were originally intended for people. A striking example, he says, concerns the guarantees of equal protection and due process in the 14th Amendment, which was enacted after the Civil War to ensure equal rights for freed slaves. But over the 44 years following its passage, Winkler says the Supreme Court heard 28 14th Amendment cases involving African-Americans and 312 involving corporations.

Winkler says the Citizens United ruling is best understood as the culmination of a long and long-overlooked corporate rights movement. His new book is called "We The Corporations." Winkler also wrote a book on the history of gun regulation, which we'll hear about a little later. Adam Winkler spoke with FRESH AIR's Dave Davies.

DAVE DAVIES, BYLINE: Adam Winkler, welcome to FRESH AIR. You tell many, many cases of corporations going before the courts and saying, if we were a person, we would have this right - the right to sue here, the right to freedom of speech, you know, the right to exemption from unreasonable searches and seizures. And they would argue that those rights ought to be afforded to corporations and businesses as well as people.

Is there ever any evidence that when the Constitution was drafted and the Bill of Rights, the founders thought of these rights as going to businesses as corporations as well as people?

ADAM WINKLER: There's no evidence that the framers ever intended the Constitution to protect business corporations, too. You can go through all of the ratifying conventions. The issue is just never raised. And in fact, the founding generation harbored a certain hostility towards corporations with Jefferson condemning what he called the aristocracy of our moneyed corporations.

And indeed, if we think about some of the key incidents in the revolutionary era, the Revolution was in part a revolt against a powerful corporation, too. We think of, say, the Boston Tea Party. It's not just a revolt against the British government. It was really a - also a revolt against the East India Company, which was the biggest and most powerful corporation in the world and was responsible for the importation of tea into the colonies.

DAVIES: You write about a number of cases in the 19th century when corporations wanted to be free from state or local taxes or the right to challenge those taxes in the federal court. And they went to the federal courts for relief, saying, we have the right to be free from these taxes under some provision of the Constitution. Did they assert directly, look; corporations are essentially people; these institutions are the same as persons?

WINKLER: Yes. And one of the most remarkable examples of this comes in a series of cases brought by the Southern Pacific Railroad in the 1880s. One of the most powerful corporations at the time, the Southern Pacific Railroad hired an all-star team of lawyers, a dream team of lawyers to file a series of what the company called test cases, more than 60 in all, seeking new rights for corporations under the 14th Amendment. The 14th Amendment had been adopted after the Civil War to protect the rights of the newly freed slaves.

But Roscoe Conkling, one of the lawyers for the Southern Pacific Railroad, claimed it was also written to protect business corporations. And Conkling had unusual credibility with the justices. Not only had he been nominated and confirmed to the Supreme Court himself, turning the seat down, but he had been a drafter of the 14th Amendment when he was a young congressman. And so when he was testifying to the intent of the framers of the 14th Amendment, he was saying what he thought and what he had felt.

Turns out historians have gone back and determined that Conkling had flat-out lied to the United States Supreme Court about the drafting history of the 14th Amendment. But nonetheless, in time the Supreme Court did adopt Roscoe Conkling's theory. And before long, the 14th Amendment was used much more to protect the rights of business corporations than the rights of African-Americans even though African-Americans were the intended beneficiaries of that provision.

DAVIES: So we're talking about this amendment which was drafted after the Civil War to accord rights to African-Americans, freed slaves. This corporate lawyer, Roscoe Conkling, says, no, we were actually thinking about businesses, too. And the record shows he kind of made that up.

WINKLER: That's right. He said to the court that the language of the 14th Amendment when it was proposed had been changed. From granting equal protection to citizens, he said it was changed to the word persons, specifically, he said, to embrace artificial persons as well as natural persons. And it turns out that that was just flat-out untrue. And history shows that not a single framer of the 14th Amendment other than Roscoe Conkling ever said or implied that business corporations were protected, too.

DAVIES: So the railroad sought to get this assurance of due process that was intended for freed slaves in the 14th Amendment. And you tell a fascinating story about how the court in one of these rulings did not embrace the idea that corporations can be considered persons, but somebody in essentially a clerical role managed to manipulate the records so that it seemed they did. What happened?

WINKLER: It's really a remarkable part of the story of the Southern Pacific test cases. Roscoe Conkling's case was never decided by the Supreme Court. They held onto it for three years without ever deciding, I think in part because they uncovered his fraud. But a couple of years later, another one of the Southern Pacific Railroad's 60 test cases comes before the Supreme Court, raising the exact same issue but without Conkling associated with it. And the Supreme Court in that case does not rule that corporations have 14th Amendment rights. They decided on some other grounds. And they specifically say, we're not ruling on that basis.

But the court reporter, a fellow by the name of J.C. Bancroft Davis, who by tradition writes up a syllabus or summary of the opinion and publishes it in the official Supreme Court volumes, wrote that the court had held that corporations were protected by the 14th Amendment. And indeed, in the years to come, the Supreme Court and courts around the nation would cite the Southern Pacific Railroad case for supporting the idea that corporations are protected by the 14th Amendment even though the court never said it in that opinion.

DAVIES: Turning a loss into a win (laughter). When it eventually became known that the will of the court had been misrepresented in this summary which purported to show that the courts found corporations have the rights of people when in fact they didn't say that - when this was discovered eventually, did it make any difference?

WINKLER: It did make a difference for some. There were critics of the Supreme Court's opinions. And one justice in particular, Hugo Black, who was an appointee of Franklin Delano Roosevelt, was only on the Supreme Court for three months. And he wrote an opinion arguing for overturning the entire line of 14th Amendment cases giving rights to corporations precisely because, he said, the framers of the 14th Amendment never intended to protect business corporations.

However, over the course of American history, whether we've had liberal justices or conservative justices, the truth is most of our justices have been very business-friendly. And there's really never been a concerted effort besides that of Justice Black to overturn the 14th Amendment rights of corporations. And corporations were very successful using the 14th Amendment to strike down legislation.

In fact, between 1890 and 1937 is a period in the Supreme Court's history where the court was notorious for ruling in favor of businesses and struck down things like federal child labor laws, minimum wage laws, maximum hour laws, zoning laws. Meanwhile, that same Supreme Court refused to read the 14th Amendment to protect African-Americans and indeed upheld racial segregation and Jim Crow laws at the same time it was reading the 14th Amendment to protect business corporations. And in the years to come, the Supreme Court would rule on only 28 cases on the rights of African-Americans before 1912 and 312 cases on the rights of business corporations.

DAVIES: You know, what's puzzling to me about this is that if we understand the 14th Amendment to grant everyone rights of due process, one might say, well, surely businesses deserve that, too. What was the difference that it made here? Why shouldn't they have had the right to make their case in a court?

WINKLER: I think one thing we learn from looking at the history of corporate rights is that corporations do need some constitutional protections - protections for their property rights, protections for due process rights. For most of human history, corporations could not be held liable for a crime, but that changes around the early 1900s. And as a result, corporations say, well, if you can charge us with crimes, we should still have the protections that the Constitution affords to criminal defendants. And indeed that's right. They should have due process. The government shouldn't be able to take a corporation's property without paying just compensation. And shouldn't be able to declare a corporation guilty of a crime without having to prove it beyond a reasonable doubt.

So as a result, we might think that some rights for corporations are necessary. What's become controversial is that the Supreme Court has afforded rights associated with personal liberty like political freedom and religious conscience to corporations.

DAVIES: But back in the 19th century, why would giving corporations the right to due process, the - you know, the chance to make their case in court - why would that allow them to strike down child labor laws, for example?

WINKLER: Well, in part, the story is that it gave them access to the court that was itself very business-friendly, that - the Supreme Court we often think of as a bulwark for the protection of minorities. But over the course of American history, the Supreme Court has usually used its power of judicial review to benefit the most wealthy and powerful corporations. And so they were able to use those rights of due process that they should have but use them in a way that was especially effective because the Supreme Court tended to side with big business.

DAVIES: Adam Winkler is a law professor at UCLA. His new book is "We The Corporations: How American Businesses Won Their Civil Rights." We'll be back after a short break. This is FRESH AIR.

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DAVIES: This is FRESH AIR. And we're speaking with law professor Adam Winkler. He has a new book which examines legal battles over the course of American history on whether corporations should be regarded as people in the eyes of the law. It's called "We The Corporations: How American Businesses Won Their Civil Rights."

Throughout the 20th century, there were important advances in corporate rights. And one of them actually involved the NAACP. It won a case which actually tended, if I have your argument right here, to expand corporate rights. How did that happen?

WINKLER: Well, that's right. One of the things we see when we look through the history of corporate rights is that business corporations have been able to leverage victories by other kinds of corporations, from nonprofit corporations, from colleges, from newspaper corporations and even from the NAACP.

Back in the 1950s, the Southern recalcitrance who wanted to put the NAACP out of business used the fact that it was formed as a corporation to try to bring it down by using corporate law rules to show that the NAACP had violated state laws and thus couldn't operate in Southern states. The Supreme Court rejected those cases and said that the NAACP did have a fundamental right of association to protect its membership. And that same ruling would be cited by cases in years to come, providing more expansive protections for business corporations to fight off regulation and would be one of the foundations even of Citizens United.

DAVIES: Did the NAACP argue that its members' free speech rights, their rights - their freedom of expression was violated by this assault from the state?

WINKLER: The NAACP argued that its members' freedom of association was limited by these efforts to shut the NAACP down and to try to get information about the membership. And Thurgood Marshall took a case to the Supreme Court, arguing that the NAACP, even though it was a corporation, was protected by the freedom of association. And corporations would use that same precedent to fight for their own rights. And indeed by the time of Citizens United, when the Supreme Court thinks about the nature of a corporation, it describes it as an association almost as if Exxon were the same as the NAACP.

DAVIES: Another important case involved the governor of Louisiana, Huey Long, who came down really hard on newspapers that didn't like him in Louisiana. And this led to an important ruling involving corporate rights. What happened?

WINKLER: In the 1930s, Huey Long was in some ways Trump before Trump. He was a populist who was elected on the eve of the Great Depression, promising to make Louisiana great again. And he accused the media which attacked him and his agenda for publishing fake news and long imposed an advertising tax on the newspaper corporations to try to silence them.

And the newspaper corporations challenged that tax in court, arguing that it violated their freedom of the press rights. And indeed, they won a landmark ruling in the Supreme Court that expanded the freedom of the press and said that corporations were entitled to assert that right, too. In a modern democracy, you needed newspapers to check the government and to foster democratic deliberation. And they were published by corporations.

And indeed, some of the most important freedom of the press cases in history have been brought by business corporations. If we think about the Pentagon Papers case and the famous movie "The Post," it's really a movie about a business corporation asserting its First Amendment rights.

DAVIES: You know, what's fascinating about the Huey Long case is that this governor was notoriously corrupt. And most progressives and populists were appalled by the fact that he imposed this tax really on just, like, the 13 larger papers that had the wherewithal to criticize him. And most people would agree that that was entirely unfair and punitive. But the decision allowed corporations to say, we're entitled to freedom of speech just as people are.

WINKLER: That's right. And the Supreme Court said that corporations do have First Amendment rights and that corporations are also valuable contributors to Democratic debate. Those are important ideas that will ultimately grow into Citizens United because one thing the Supreme Court rarely does is differentiate between different kinds of corporations and will often say that because a newspaper corporation has some right, every other kind of corporation has that right, too, without recognizing perhaps that the freedom of the press in the First Amendment might create a special rule for newspaper corporations.

DAVIES: Right. So the corporation that has a constitutional right to criticize a corrupt politician becomes the same as a big money-making corporation's right to express its views in the form of political contributions.

WINKLER: That's right. And a key turning point in this process is a surprising case brought by Ralph Nader in the 1970s. And Ralph Nader, on behalf of consumers, takes a case to the Supreme Court challenging a ban on pharmacists advertising drug prices. And he's trying to help consumers so that they can comparison shop and get the cheapest prices. And his case becomes a landmark victory in the Supreme Court where the Supreme Court says the First Amendment protects the rights of consumers - of the listeners of speech not just the rights of the speaker. And indeed, the speaker's identity doesn't matter. That same theory of the First Amendment would be adopted by Citizens United, and other courts since then, saying that the identity of the corporate speaker in election campaigns is irrelevant. All that matters is whether the speech itself is valuable to the listeners or consumers. So in some ways, Ralph Nader gave us Citizens United.

DAVIES: Well, let's talk about the Citizens United decision. Before Citizens United, how far had corporations come in getting rights equal to people in the courts?

WINKLER: Well, even before Citizens United, corporations had already won most of the rights guaranteed to individuals in the constitution - at least ones that might be relevant to a corporation. And they had even won a limited right of political speech. Back in the 1970s, Justice Lewis Powell - a very influential justice in the history of corporate rights - writes an important opinion for the Supreme Court saying that corporations do have a right to participate and spend money on ballot measure campaigns. And that's an important inroads for corporations to spend money on politics 30 years before Citizens United. And so even before Citizens United, corporations had asserted a lot of rights and had won a lot of protections, including at least some limited rights to engage in political speech. So in this way, Citizens United was groundbreaking. It did take it to another level. But at the same time, it was built on a long history and foundation of Supreme Court cases.

DAVIES: Your chapter on the Citizens United decision is called "The Triumph Of Corporate Rights." Let's start with the group Citizens United. What is it? How did it end up before the Supreme Court?

WINKLER: Citizens United was a nonprofit advocacy corporation that made a movie about Hillary Clinton that it expected to run during the 2008 presidential campaign. And it was kind of a hit piece - all about how what a bad president she would be. But they accepted a little bit of corporate money. Had Citizens United financed the movie on their own with voluntary membership contributions, it would have had no First Amendment problems. The Supreme Court had long said those kinds of corporations have free speech rights. But they used contributions that have been given to them by a business corporation. And we had strict laws limiting corporate money in election ads. And so Citizens United challenged that - brought the lawsuit with a lawyer by the name of Jim Bopp, who was a real sort of movement lawyer in favor of restricting campaign finance laws. And he envisioned this as a case that could go to the Supreme Court and overturn some of the restrictions on corporate money in elections. And he turned out to be right.

DAVIES: It was a feature-length film that said all kinds of horrible things about Hillary Clinton. And it was considered different from political advertising. But it was still regulated by the Federal Election Commission because if you air a hit piece on a candidate within a certain distance - 60 days of a primary or a general election - there are regulations about how it can be made. And corporations could not fund such an effort, right?

WINKLER: That's exactly right. If we go back to the McCain-Feingold law of the early 2000s, corporations were prohibited from spending money on any election ad that featured a clearly identifiable candidate. And the FEC determined that Citizens United's movie about Hillary Clinton was indeed an election ad. It wasn't just a movie or a book about Hillary Clinton. But it effectively served as advocacy against her candidacy and thus was subject to the campaign finance laws.

GROSS: We're listening to the interview FRESH AIR's Dave Davies recorded with Adam Winkler, author of the new book "We The Corporations." They'll talk more after a break. And we'll have reviews of a new album by Tracey Thorn and the new reboot of the sitcom "Roseanne." I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to the interview FRESH AIR's Dave Davies recorded with Adam Winkler, author of "We The Corporations." When they left off, they were discussing the landmark 2010 Supreme Court decision Citizens United, which struck down limits on campaign-related spending by corporations - ruling those limits were intrusions on corporations' free speech. The case originated with a movie aimed at undermining Hillary Clinton's 2008 presidential campaign - a movie produced by Citizens United, a nonprofit conservative advocacy group. Because the film had some corporate funding, Citizens United anticipated that the Federal Election Commission would conclude the film violated campaign finance law and would bar the movie from being shown on cable TV close to the election. Citizens United sued the FEC, and the case reached the Supreme Court.

DAVIES: So Citizens United came before the court and said look. The corporations that helped us make this movie have free speech rights, just as people do, to express their views in this presidential election. And what's interesting about the case is that the conservative justices on the court actually do to express their views in this presidential election. And what's interesting about the case is that the conservative justices on the court actually went farther than Citizens United lawyers wanted them to go. They wanted - they kind of wanted a narrow ruling, and the justices wanted to have more impact. What happened?

WINKLER: On the eve of the Supreme Court case, Citizens United decided to change its lawyer, and it hired an illustrious lawyer in Washington named Ted Olson, who's sort of the dean of the elite Supreme Court Bar today. And Olson envisioned the case as a narrow one and tried to win the case with a very narrow ruling, arguing that this film didn't fall under McCain-Feingold, so it was no reason - there was no reason to challenge McCain-Feingold.

Several of the justices didn't like that framing and pushed the case to be viewed in much broader terms. And indeed the Supreme Court would ultimately decide on its own to hold reargument in the case to address the - not the narrow issues raised by Ted Olson but the broad questions of whether corporations could be limited by campaign finance law at all. And that was really the justices themselves pushing to decide that question, which has raised some questions about the appropriateness of that move.

DAVIES: Right. And there was a tradition in the court that you don't decide issues which the parties have not argued and briefed in their pleadings. They wanted to really explore this issue of whether or not corporations can be regulated, to what extent, at all. So they asked the parties to come back - for a second appearance and a second set of briefs and address this much more far-reaching issue.

WINKLER: That's right. After the first Citizens United argument, a majority of justices decided that they would write an opinion that would overturn the long-standing campaign finance laws on corporations even though that issue had not been briefed or argued in the lower courts. So when the dissenting justices objected, the court decided to hold a second argument raising these exact broad questions about corporate rights under the First Amendment.

DAVIES: Now, it's interesting. In the ruling, the justices - they never say that corporations are to be considered persons, right?

WINKLER: That's right. For all the controversy over Citizens United and the protests of Occupy Wall Street that pointed to corporate personhood as the evil behind Citizens United, the court never uses that phrase or the idea, and nothing hinges on the idea that corporations are people. What the court says instead is that corporations are associations of people, and like the NAACP, a business corporation has a right of expression and a right of association. And like Ralph Nader's consumers, the identity of the speaker is irrelevant if the speech that the corporation wants to fund is valuable to consumers.

The Supreme Court really rested the decision on Citizens United not on the rights of corporations but on the rights of other people, the people who associate within the corporation or the people who would listen to the corporation's speech.

DAVIES: So with the Citizens United decision, companies can fund independent expenditures like on this film attacking Hillary Clinton. Corporations are still prohibited from contributing directly to candidates. Why?

WINKLER: After Citizens United, there were serious questions about whether the long-standing ban on corporate contributions directly to candidates was constitutionally permissible. After all, the Supreme Court in Citizens United said that the identity of the speaker was irrelevant which should - which would suggest that corporations can give money to candidates, too. Nonetheless, the lower courts have subsequently upheld the restrictions on direct corporate contributions to candidates, and the Supreme Court has not seen fit to disturb those decisions.

I will say that allowing corporations to spend unlimited amounts of money on election ads may be a much more powerful right for corporations to exercise political influence than to be able to give under current caps of about $2,000 directly to candidates. I think corporations would much rather be able to spend on independent expenditures 'cause they can spend a lot more.

DAVIES: And after Citizens United, we've seen that wealthy individuals apart from corporations but just rich people that want to can and now do spend unlimited amounts of money on their own independent expenditures. How did that flow from the Citizens United decision?

WINKLER: Well, one of the things that the Supreme Court said in Citizens United over and above the idea that corporations could spend money on ads was that any ad that is not coordinated with a candidate and that does not say explicitly vote for or vote against someone was an independent ad and was not subject to any financing limits no matter who it was, whether it was an individual or it was a corporation. And the courts have interpreted Citizens United to mean that you cannot restrict anyone from spending tremendous amount of money on these independent ads.

So that's why we've seen individuals like Sheldon Adelson spend nearly $90 million to try to elect Mitt Romney - because the Citizens United lifts caps not just on corporations but on individuals as well.

DAVIES: And was the logic that as long as you aren't talking directly to the candidate and working directly with their campaign, we don't need to worry about a corrupting effect?

WINKLER: That's right. What the court said is that there is corruption possibly if you give money directly to a candidate. But if you take out an independent ad that's not coordinated with the candidate, the Supreme Court suggests the candidates might like that or might not like it. It might not be a message that the candidate wants to support.

But I think that's really not a very nuanced and sophisticated way of understanding how politics works. What politician doesn't want someone spending $10 or $20 million to help out their election campaign? They know who's spending this money, and they provide access and are certainly going to be beholden, if to anyone, then to the people who are spending millions of dollars to finance their election ads.

DAVIES: You know, Jim Bopp, the lawyer for Citizens United who originally brought this case, believed that more money in elections is a good thing because more money is more information and more voices and, you know, more public discussion. A lot of people are of course appalled by what we've seen in the last several years of huge amounts of money flowing into independent advertising efforts, some of it not even disclosed. I'm wondering what you think the chances are of change either from Congress or from legal challenges to rein in some of this excessive spending in political campaigns?

WINKLER: Well, we have seen a real backlash to Citizens United. Not only do we see large bipartisan majorities who believe Citizens United was wrongly decided, but 19 states have also endorsed a proposed constitutional amendment that would declare that corporations are not people and have no rights under the Constitution. Such an amendment, I think, would have a very broad impact on the law. And while I sympathize with those who support such efforts to restrict corporate rights, I think we have to be careful in the nature of our constitutional amendment.

If we say that corporations have no rights, does that mean the President Trump could censor The New York Times and CNN - both corporations? Could the government seize corporate property without paying just compensation? If corporations have no rights, then maybe the government can do those things. So I don't think the answer is a constitutional amendment unless it was a constitutional amendment that's focused on campaign finance law particularly - allowing the government to adopt reasonable campaign finance regulations or rules restricting corporate money in elections rather than denying corporations all rights.

DAVIES: Adam Winkler is a law professor at UCLA. His new book is "We The Corporations: How American Businesses Won Their Civil Rights." You wrote a book called "Gunfight," which was regarded as a very balanced look at the long-standing battle over gun control and gun rights. And, you know, there's a lot of fascinating history here too - including the fact that if you look back at efforts at gun control in the 20th century - like back in the 1930s - the National Rifle Association was a major supporter of it. Why?

WINKLER: Well, that's right. If we go back to the 1920s and '30s, the NRA was at the forefront of the gun control movement - writing and endorsing and mobilizing in favor of laws restricting who could carry guns on public streets. The NRA undergoes a radical transformation in the 1970s and becomes a much more hard-hitting, no-compromises political advocacy group that today files lawsuits in court challenging the exact same laws that the NRA wrote as being an unconstitutional infringement of the Second Amendment.

DAVIES: And it was fascinating to read that back in the '30s the leaders of the NRA didn't even talk about the Second Amendment.

WINKLER: No. If you go back through the American Rifleman, the NRA's magazine, in the '40s, '50s, '60s, you just don't see very many mentions of the Second Amendment at all.

DAVIES: So what changed? Was there a coup in the NRA? Did different kinds of people get involved?

WINKLER: There was a coup in the NRA. In the early 1970s, the leadership of the NRA wanted to retreat from political activity - move the NRA to Colorado Springs and focus on outdoors activity. This really angered a group of hard-liners in the membership who, at a time of rising crime rates, thought that guns were more important for shooting criminals than for shooting ducks. And at the annual membership meeting in 1977, those hard-liners staged a coup manipulating the rules of order. They replace the entire board of the NRA overnight. And when the sun rose the next day, a new NRA was born that was totally committed to political advocacy and the hard-hitting politics that we know the NRA for today.

DAVIES: This may be a really important moment in our attitude towards guns and gun regulation. There are calls - new calls for gun control in the wake of the shootings in Florida and the activism of students, both in Florida and around the country. As someone who has studied this issue, is it fair to say that what happens now will be a political fight and not a legal one? I mean, is the legal basis there for the kinds of controls that these folks want?

WINKLER: Yes. The gun debate today is stalled because it's stalled in politics not stalled in the law. The truth is that the Supreme Court has said the Second Amendment protects an individual's right to have firearms in the home for personal protection. But the courts have upheld the vast majority of gun control laws. And the big barrier to getting good and effective gun control laws is not the courts or the Second Amendment. The big barrier is that the NRA and its allies refuse to support any new legislation. And virtually any of the major items on the gun control agenda - from banning bump stocks to universal background checks to restrictions on military-style rifles - all of those laws are almost certain to be upheld by the federal courts.

DAVIES: Adam Winkler, thanks so much for speaking with us.

WINKLER: Pleasure to be on.

GROSS: Adam Winkler is the author of the new book "We The Corporations" and the book "Gunfight." He spoke with FRESH AIR'S Dave Davies, who is also WHYY's senior reporter. After we take a short break, rock critic Ken Tucker will review a new album by singer-songwriter Tracey Thorn. This is FRESH AIR.

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