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The right to self-defense

By Wendy McElroy
web posted July 18, 2005

On June 27, in the case of Castle Rock v. Gonzales, the Supreme Court found that Jessica Gonzales did not have a constitutional right to police protection even in the presence of a restraining order.

By a vote of 7-to-2, the Supreme Court ruled that Gonzales has no right to sue her local police department for failing to protect her and her children from her estranged husband.

The post-mortem discussion on Gonzales has been fiery but it has missed an obvious point. If the government won't protect you, then you have to take responsibility for your own self-defense and that of your family. The court's ruling is a sad decision, but one that every victim and/or potential victim of violence must note: calling the police is not enough. You must also be ready to defend yourself.

In 1999, Gonzales obtained a restraining order against her estranged husband Simon, which limited his access to their children. On June 22, 1999, Simon abducted their three daughters. Though the Castle Rock police department disputes some of the details of what happened next, the two sides are in basic agreement: After her daughters' abduction, Gonzales repeatedly phoned the police for assistance. Officers visited the home. Believing Simon to be non-violent and, arguably, in compliance with the limited access granted by the restraining order, the police did nothing.

The next morning, Simon committed "suicide by cop." He shot a gun repeatedly through a police station window and was killed by returned fire. The murdered bodies of Leslie, 7, Katheryn, 9 and Rebecca, 10 were found in Simon's pickup truck.

In her lawsuit, Gonzales claimed the police violated her 14th Amendment right to due process and sued them for $30 million. She won at the Appeals level.

What were the arguments that won and lost in the Supreme Court?

Winners: local officials fell back upon a rich history of court decisions that found the police to have no constitutional obligation to protect individuals from private individuals. In 1856, the U.S. Supreme Court (South v. Maryland) found that law enforcement officers had no affirmative duty to provide such protection. In 1982 (Bowers v. DeVito), the Court of Appeals, Seventh Circuit held, "...there is no Constitutional right to be protected by the state against being murdered by criminals or madmen."

Later court decisions have concurred.

Losers: anti-domestic violence advocates and women's groups, such as the National Association of Women Lawyers, failed to establish that restraining orders were constitutional entitlements. If they had succeeded, the enforcement of such orders would have been guaranteed by due process. Failure to enforce them would have been grounds for a lawsuit against the police, a precedent that local officials feared would flood them with expensive litigation.

Public analysis of Rock v. Gonzales has been largely defined by these two opposing positions.

A third position cries out: Given the court's position that the police are not obliged to protect us, responsible adults need the ability to defend themselves. Thus, no law or policy should impede the access to gun ownership.

Responsible adults — both male and female — have both a right and a need to defend themselves and their families, with lethal force if necessary. If domestic violence advocates had focused on putting a gun in Jessica's hand and training her to use it, then the three Gonzales children might still be alive. After all, Jessica knew where her husband was. Indeed, she informed the police repeatedly of his location.

Of course, the Gonzales case — in and of itself — presents difficulties for the use of armed force by private citizens. Would the same police who believed Simon Gonzales was not dangerous have believed Jessica to be justified in picking up a gun to protect her children from him? Would the police have charged her for use of a weapon? Regardless, these sticky debates would probably be taking place in the presence of three living children and not three dead ones.

Nevertheless, most anti-domestic violence advocates strenuously avoid gun ownership as a possible solution to domestic violence. Instead, they appeal for more police intervention even though the police have no obligation to provide protection.

When groups like the National Organization for Women (NOW) do focus on gun ownership, it is to make such statements as, "Guns and domestic violence make a lethal combination, injuring and killing women every day."

In short, NOW addresses the issue of gun ownership and domestic violence only in order to demand a prohibition on the ability of abusers — always defined as men — to own weapons.

That position may be defensible. But it ignores half of the equation. It ignores the need of potential victims to defend themselves and their families. Anti-domestic violence and women's groups create the impression that guns are always part of the problem and never part of the solution.

The current mainstream of feminism — from which most anti-domestic violence advocates proceed — is an expression of left liberalism. It rejects private solutions based on individual rights in favor of laws aimed at achieving social goals. A responsible individual holding a gun in self-defense does not fit their vision of society.

In the final analysis, such advocates do not trust the judgment of the women they claim to be defending. They do not believe that Jessica Gonzales' three children would have been safer with a mother who was armed and educated in gun use.

The clear message of Gonzales bears repeating because you will not hear it elsewhere. The police have no obligation to protect individuals who, therefore, should defend themselves. The content of state laws does not matter; by Colorado State law, the police are required to "use every reasonable means to enforce a protection order." The Supreme Court has ruled and that's that.

In the wake of Gonzales, every anti-domestic violence advocate should advise victims — male or female — to learn self-defense. They should lobby for the repeal of any law or policy that hinders responsible gun ownership.

The true meaning of being anti-domestic violence means is to help victims out of their victimhood and into a position of power.

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

Other related stories: (open in a new window)

  • Mother sues cops for failing to protect kids by Wendy McElroy (April 4, 2005)
    A case that the U.S. Supreme Court recently heard arguments on may force many police officers to take restraining orders more seriously, writes Wendy McElroy

 

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