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 failing 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.
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 the 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. Government has no competition; it has guaranteed customers who must pay its bills, and it has made itself immune from the consequences of its own failures.
Why do we give cops a badge and a gun and unchecked authority to restrain our free movements and then immunize them from their own failure to do what is expected? The police are at the fulcrum of the clash between order and liberty. Liberty is natural to humanity. Order is imposed by the tyranny of the majority.
Imagine that Uvalde had no police force and a group of parents hired private police to protect their kids at school. Would we even be having this conversation? Of course not. Yet, if the private police failed to protect the children, wouldn’t they be fired and sued?
The same government mentality — pay whatever we demand and accept whatever we give — wants to strip us of our right to self-defense and leave us defenseless. That is the progressive dream — an egalitarian society where the government takes from each person according to our abilities and gives to others whatever it decides they need, and we are all dependent upon it.
Because most folks prefer the illusion of safety to the sweet fruits of liberty, the government has successfully stolen freedom and given the impression that only it knows how to use force for beneficial purposes. Uvalde shattered that illusion.
What do we do about this?
Thomas Jefferson argued that no government is moral without the consent of the governed, and all government needs the actual personal consent of the governed once in every generation. Without consent, the government has no right to negate freedom. Even with consent, if the government fails to do what we have hired it to do if it impairs liberty and permits others to take life, liberty or property, it should be altered or abolished.
• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.