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Susan Estrich - Between fear and freedom

With images of the carnage in Paris and the shuttering of Brussels flashing on every screen, it is hard to take to heart the president's urgings not to give in to fear. A global terror alert does not help. The front-page pictures of all the homegrown terrorists make it harder still. How could these young men have grown up among us, as Americans, and be full of such hatred that they would choose, as we are being warned, targets where they can kill as many people as possible?

I remind my students, when we talk of such things, that 99.9 percent of the Muslims in the world do not belong to ISIS or al-Qaida, that they are part of communities all over our country, living and working beside us. If violence that they also deplore is infecting their young people, then it is a curse that they have every bit as much interest in wiping out as we do. If they are not always as vocal as we on the outside would like, it may be because their fear is even greater than ours.

I know, easier said than done. If there are two security lines at the airport, and one has young men who appear to be Muslim in it and the other has a couple of white guys in suits, which line do you choose? Is it racist to want to get to your gate faster?

Of course, no one will say that Muslim-looking men are subject to enhanced scrutiny, just like no police department will ever admit that they engage in racial profiling. But if you survey your friends and neighbors about who has been stopped by police, as I do with my students every year, I'll bet you dollars to donuts that you'll find that gender matters and age matters and yes, race matters, maybe the most of all.

Every year, my white female students have the class laughing at stories of outrageous behavior that resulted, at most, in warnings. My black students, meanwhile, have stories of police officers instructing them, "Keep them at 10 and two. Hands on the wheel." This is when they've been stopped for such offenses as a headlight supposedly being out.
It is hard to avoid stereotypes that are both unfair and accurate. Ninety-nine percent of Muslims are not terrorists, but 100 percent of the terrorists we fear are radical Islamists. It is true that we must never, as a country, cave in to the culture of fear terrorists try to create; but it is also true that, as an individual, I am glad my kids aren't studying abroad this year. One of the doctors I respect most in the world, a man who travels internationally all the time, told me yesterday that he had just cancelled a trip to Europe. I didn't say, "How dare you give in!" I probably would do the same thing, not because the risk of terrorism is so high (it's probably lower than the risk of an accident driving around Los Angeles during the same period), but because the anxiety defeats the very purpose of a vacation.

In law school, we teach our students that hard cases make bad law. Hard times, when we are afraid, do as well. If you look at the history of First Amendment law, you see the pattern clearly: When we are afraid, we arrest people for seditious speech, and we have, to our discredit, put Japanese-Americans in camps; when we feel secure, we go to great lengths to respect freedom of speech and religion and to demand equal treatment by authorities. Courts are loath to lose their legitimacy; judges are also people. Civil liberties are easily lost in times of terror, given up too quickly by the frightened majority, to the detriment of those who are wrongly feared. Look at what is happening in France.

Since 9/11, we have struggled as a nation to find a new balance between fear and freedom. We have been far from perfect in drawing those lines, and the courts, as well as political leaders, have rightly pointed that out. But the fact remains that we are safer, and have more freedom, than people anywhere in the world. "We are so grateful to live in this country," a Russian immigrant sitting at the next table tells me. So am I. Our struggle is the noble one. God bless America.

(Susan Estrich is a professor of Law and Political Science at the University of Southern California Law Center. A best-selling author, lawyer and politician, as well as a teacher, she first gained national prominence as national campaign manager for Dukakis for President in 1988.)

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If just 1 or 2 of the Paris victims had been carrying weapons. . .

To The Daily Sun,

This is offered as a postscript to the well-written letter by Don Ewing that was published in The Daily Sun on Saturday, Nov. 21. Our responsibility, as freedom loving Americans, is to expose the biggest lies of the irresponsible gun-ban crowd, which includes the fantasy that individuals don't need guns to protect themselves because that's the job of the police.

The following is taken from recent NRA file documents:

— "... a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen."
— "The duty to provide public services is owed to the public at large, and, absent a special relationship between the police and an individual, no specific legal duty exists."

Those words are the exact wording and the opinions of the District of Columbia Superior Court and the D.C. Court of Appeals, issued in 1978 and 1981, respectively, blocking a suit by three young women who had been raped and beaten for 14 hours during a nightmarish home invasion in 1975. Two of the three women had repeatedly called the D.C. police for help. Time and again they watched a police car slowly drive by their townhouse after their first call for help, then were told help was on its way in subsequent calls, when in fact it was not.

The decisions in that case, Warren v. District of Columbia, came at a time when incredibly, D.C. was still enforcing its ban on any firearms in the home for self-defense.

The decision by those lower courts in "Warren" mirrored decades of U.S. Supreme Court precedents. And since then, the latest high-court opinion, declaring "police have no duty to protect" ordinary citizens, was handed down in June 2005. All this gives the lie to the gun-ban crowd's mantra: "let law enforcement protect you."

The simple truth is, these cases were correctly decided because, were individual citizens owed an absolute duty to individual protection by police, no law enforcement agency in the nation could exist for long, because of the glut of litigation claiming violation of individuals' rights to police protection.

Admittedly, the circumstances that have led to some lawsuits against police departments involve horrendous indifference by police. But if "a duty" is owed in one awful situation marked by incompetence, it is owed in all cases by all law enforcement officers. And that, according to the court decisions, is simply not possible.

"Duty to protect?" We even see that slogan painted on the side of some municipality's squad cars. But the fact is police officers simply cannot be everywhere a crime of violence is occurring. These court rulings simply confirm that the job of police is to investigate, pursue criminals and make arrests after a crime has been committed.

I don't know who originated the notion that "when seconds count, the police are minutes away," but it defines why the individual right to keep and bear arms is such a core "right" in a free country. In some rural areas, those minutes might even be more like hours.

The question our friends and neighbors and fellow gun owners should ask is: "Who, then, protects you if the police have no duty to do so?" The answer is obvious. You do! Responsible members of your family do! Your neighbors do!

Had the young women in the Warren case been armed, they could have defended themselves. But at the time in 1975, such armed self-defense was a crime! in Washington, D.C. And nothing changed for the next 33 years.

That was the issue finally decided by the U.S. Supreme Court in its landmark June, 2008 Heller decision, striking down the D.C. handgun ban and the city's "prohibition against rendering any lawful firearm in the home inoperable for the purpose of immediate self-defense."

In his ringing majority defense of the Second Amendment, Associate Justice Antonin Scalia wrote, "The handgun ban amounts to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family and property is most acute."

That remarkable decision was followed by the high court's June 2010 majority opinion in McDonald v. Chicago, which extended the protection of the Second Amendment in "Heller" to every corner of the nation.

People need to understand that the Second Amendment doesn't require you to do anything! All it does is preserves their right and their choice to defend themselves with arms against criminal violence.

The gun-ban crowd always tries to present the idea that supporters of the Second Amendment are "cowboys," or backward, or stupid. However, if given the truth — the facts, most Americans will begin to understand the personal meaning of the Second Amendment. The gun-control fanatics also love to compare America to so many other countries that do not allow its citizens to protect themselves. But consider this — when the citizens of oppressive regimes protest against injustices, the government always has guns, but they are forced to use bottles and rocks.

If there is any "duty to protect," it is our "duty," as members of a free society, and as members of the NRA, legally qualified to "keep and bear arms," and to legally carry concealed, to protect the Second Amendment, and the lives of innocent people who are threatened by violence.

We can do that with our votes, by exercising the First Amendment and one-on-one convincing our friends, co-workers and neighbors of the truth of the cause of freedom.

As Mr. Ewing pointed out in his great letter, many of those innocent victims in Paris had been shot, one by one, by those monsters. If just a couple of people had been legally permitted to carry concealed in those venues in Paris, just think how much quicker those terrorists might have been stopped from killing so many people.

Wake up, America, before it's too late.

Jim McCoole

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