Kyle Rittenhouse: The narrow contours of relevance

 

The narrow frame of the criminal law focused on what happened at the moment Kyle Rittenhouse faced the men he shot and killed.  That the presence of a heavily armed child-man civilian  was one which created profound risks of just the kind of thing that did happen was beyond the scope of the trial.  The deep unwisdom of the Constitutional and legislative licensing of vigilante justice played no part in the trial. We are much worse off as a nation for that fact. 

The right to bear arms   begins at home  Antonin Scalia declared  in Heller v. District of Columbia. (2008)  But once enshrined in the Constitution, right after the First Amendment, its parameters grew quickly.  Clothed as a right the exercise of the privilege of  self-defense was lodged right next to the First Amendment in the hearts and minds of many.  So in 2012 Richard Posner, then a 7th Circuit judge, struck down an Illinois law barring carrying loaded guns outside the home. In Moore v Madigan he wrote 

“[O]ne doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home. Suppose one lived in what was then the wild west, the Ohio Valley for example (for until the Louisiana Purchase the Mississippi River was the western boundary of the United States), where there were hostile Indians. One would need from time to time to leave one’s home to obtain supplies from the nearest trading post, and en route one would be as much (probably more) at risk if unarmed as one would be in one’s home unarmed.”

The right seems on the verge of expansion to the subways, elevated trains, buses, and streets of New York - based on the oral argument in the New York Rifle and Pistol Association case before the Supreme Court a couple of weeks ago. 

It would have helped to be an historian as the right has long been regulated, as seventeen English and American historians demonstrated to the Supreme Court in a recent brief.  So clothed in the right of open carry 17 year old Kyle Rittenhouse headed to Kenosha.  Heavily armed, utterly untrained, undisciplined, under the command of no one the youth walked the dark streets with a weapon of war on a night of turbulent, sometimes threatening protests over a police shooting of a Black man.  He killed two men and seriously wounded another.  He walked away a free man today.

The ambiguity of the Heller decision left open the parameters of what restrictions states could impose.  Wisconsin permitted open carry - not just of handguns - but of semi-automatic military style weapons like the AR-15 Kyle Rittenhouse was flaunting.  Clothed in right he strolled past indifferent police officers -  but alarmed others who found his armed presence a provocation and attacked him.

But at that point the law stepped in.  The policy choice had been made: a child bearing arms is entitled to walk the streets as disorder threatens.  He was attacked - by those whom he provoked to attack.  The judge accurately stated Wisconsin law. Even if his provocation was unlawful but an attack followed which "caused [him] to reasonably believe that he is in imminent danger of death or great bodily  harm he may lawfully act in self-defense". That is  he may use or threaten deadly force if he "reasonably believes he has exhausted every other reasonable means to escape from or otherwise avoid death of great bodily harm."

The State was compelled to prove beyond reasonable doubt that Rittenhouse did not "reasonably believe" that he had no "reasonable means to escape"  It is hard to prove a negative - and the State of Wisconsin did not persuade the jury which acquitted Kyle Rittenhouse.

- George Conk