Opinion from a Libertarian ViewPoint

Why Keep a Government That Fails Us?

Posted by M. C. on July 21, 2022

By Andrew P. Napolitano

In a free country, the government needs permission to do everything. In America today, we all need the government’s permission to do anything, even to defend ourselves. Ayn Rand called this an inversion. Ludwig von Mises famously described government as the negation of liberty, and Murray Rothbard called it the monopoly of force in a given geographic area with no presumption of moral propriety.

The failure of law enforcement at all levels — local, state and federal — to protect 19 children who were slaughtered by a madman in Uvalde, Texas, in May has raised serious questions about the role of police in our once-free society. Admittedly, the Uvalde case was extreme, as 376 armed police officers did little or nothing to stop the slaughter perpetrated by one madman. There was no command and control; the decisions made on the scene were chaotic and farcical; and the essence of what law enforcement did was to shield itself from harm, rather than stop the harm.

The killer in Uvalde began his rampage by shooting randomly at the school building from a parking lot across the street as he walked toward the school. He apparently entered through a door that officials presumed was locked. It wasn’t. The police themselves waited 44 minutes to obtain a key to this unlocked door, which none of them even tried to open. The commanding officer at the scene was not in electronic communication with his team, his dispatcher or the 24 other police agencies present.

The Texas Legislature condemned the police response; and now heartbroken parents are left without a remedy. This is so because the U.S. Supreme Court has consistently ruled that the government and its agents have no duty to interfere with crimes that are in progress and no general duty to protect innocents. Under this line of cases, collectively called the DeShaney doctrine, the police can physically observe a bank robbery, a rape or a murder, and lawfully do nothing.

Joshua DeShaney was a 4-year-old boy who had been repeatedly abused and irreparably brain damaged by his own father whose behavior was well-known to the local government. When the mother sued the government for failure to protect Joshua, the Supreme Court ruled that the government enjoys the common law privilege of allocating its resources with impunity. Stated differently, the government decides whom it will protect and whom it will let be. Not surprisingly, the DeShaney doctrine compels the government only to protect itself and those it has confined.

There is nothing in the Constitution that compels the DeShaney doctrine. It is just big government protecting itself. There are many selfless police throughout the country who would courageously interfere to stop violent crime because they have the ability to stop it and because it is always right to save innocent human life.

In Texas, where it is lawful for anyone over 18 to purchase and openly carry a handgun, it is unlawful to carry one in a school. Local school officials can request exemptions from this law from state officials, and those exemptions have been given to all 137 Texas school districts that requested them. Of course, in none of the districts where teachers and staff are armed have there been any killings.

Just this week, in Greenwood, Indiana, before the police arrived, a 22-year-old civilian shot and killed a shooter who had begun a killing rampage in a shopping mall. Had Indiana not recognized the right to carry a firearm, we might have had another Uvalde or Buffalo, New York, slaughter on our hands.

The problem here is too much government, a Progressive goal going back to the beginnings of the Nanny State 125 years ago, when cities and towns started government monopolies on law enforcement and schools, and taxed everyone in their jurisdictions for the so-called services these entities provided, whether the taxpayer received the services or not. Unfortunately, it takes a tragedy like Uvalde before folks recognize that America is no longer a free country.

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