The jury in the Kyle Rittenhouse trial has begun its deliberations. As we wait, it is worth acknowledging that this trial has come to stand for what may well be the future of criminal defense law in America. Put aside the tactical errors of the prosecutors and the trial antics of a flamboyant judge and even the radicalization of the vigilante right—what is left is a snapshot of what will happen every time jurors contemplate how guns, protests, and hair-trigger self-defense combine in public spaces. And it looks very much like passing judgment over a shootout at the O.K. Corral.
Each of the three trials dominating the news this month features armed citizens taking up weapons to travel to public spaces where they believed themselves to be under threat. As the New York Times’ Shaila Dewan traced this past weekend, in the trial of the three killers of Ahmaud Arbery in Georgia and the Rittenhouse trial in Wisconsin, the defendants claim that they were justified in their use of violence when they killed unarmed people in self-defense. In both prosecutions, she writes, “the defendants claim they were entitled to start shooting because the victims were trying to take their guns.” White supremacists currently facing a civil trial in Charlottesville, Virginia, for harming others at a Nazi-style rally in 2017 are offering similar defenses, claiming that they too armed themselves and attacked peaceful counterprotesters out of a fear for their own safety. Dewan quotes Kimberly Kessler Ferzan, a professor of law and philosophy at the University of Pennsylvania, arguing in the Texas Law Review that “the problem is that with a citizenry armed with guns, we have blurred every line.”
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