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On Behalf of | Nov 4, 2016 | Firm News

In moral and political philosophy, the social contract or political contract is a theory, originating during the Age of Enlightenment, that typically addresses the questions of the origin of society and the legitimacy of the authority of the state over the individual.  Social contract arguments typically posit that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the ruler or magistrate (or to the decision of a majority), in exchange for protection of their remaining rights.  The term takes its name from The Social Contract a 1762 book by Jean-Jacques Rousseau which discussed this concept.  Rousseau argues a citizen cannot pursue his true interest by being an egoist but must instead subordinate himself to the law created by the citizenry acting as a collective.

Thus, the enforcement of criminal law is not a restriction on individual liberty: the individual, as a citizen, explicitly agreed to be constrained if, as a private individual, he did not respect his own will as formulated in the general will.  These theories are important since, as creatures of the Age of Enlightenment, our Founding Fathers incorporated them into the design of our government.

So what happens to the legitimacy of our government if the government revokes the contract by saying it has no duty to protect you?

Importantly in a couple of US Supreme Court decisions the Court has said the government does not have to care about you.  In Castle Rock v. Gonzales, 545 U.S. 748 (2005), the Court ruled, 7–2, that a town and its police department could not be sued under 42 U.S.C. §1983 for failing to enforce a restraining order, which had led to the murder of a woman’s three children by her estranged husband.  The Court’s majority opinion by Justice Antonin Scalia held that enforcement of the restraining order was not mandatory under Colorado law; were a mandate for enforcement to exist, it would not create an individual right to enforcement that could be considered a protected entitlement under the precedent of Board of Regents of State Colleges v. Roth; and even if there were a protected individual entitlement to enforcement of a restraining order, such entitlement would have no monetary value and hence would not count as property for the Due Process Clause.  Likewise, the U.S. Supreme Court South v. Maryland, 59 U.S. 396 (1855) found that law enforcement officers had no affirmative duty to provide such protection. In Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) the Court of Appeals held, “…there is no Constitutional right to be protected by the state against being murdered by criminals or madmen.”

Thus, the Supreme Court found that domestic violence victims do not have a federal right to police enforcement of their protective orders.  Some have argued that this decision effectively gives law enforcement a green light to ignore restraining orders.  As Justice Stevens wrote in the dissent, “the Court gives short shrift to the unique case of [statutes requiring police enforcement] in the domestic violence context.”

Castle Rock v. Gonzales is the latest in a lineage of high-profile cases, such as DeShaney v. Winnebago County, 489 U.S. 189 (1989) in which lawsuits against governmental entities for failure to prevent harm to an individual were dismissed.  Since the police are not obliged to protect us, say gun rights advocates, it is argued that adults need the ability to defend themselves. Thus, no law or policy should impede the access to gun ownership to protect ourselves and family.