How Should Rittenhouse Have Been Handled?

 

            ONE of the biggest news stories of the last few weeks has, indisputably, been the Kyle Rittenhouse trial. It has dominated the headlines. According to Google Trends, Kyle Rittenhouse became very popular in relation to search terms such as “Biden” or “COVID” during the month of November. The immense popularity of the Rittenhouse trial most certainly owes to the politicized nature of it. The case originated in the BLM-backed “Summer of Love”, when Rittenhouse opposed the efforts of radical leftist mobs. As such, he became a villain to the radical left and a hero to the right.

          However, I am not interested in the politics, not even the deep politics, of this case. I’ve written so much on deep politics and such in these past few months, I need a break. In this article, I simply want to focus on facts and law. I want to accurately cover the Rittenhouse trial, the constitutional law behind it, and other relevant matters. So, this will be political, just not deep-political. 

          First, we need to address the constitutional side of this trial, which is really why - like many other trials - it gained notoriety. The trial has been turned into yet another crusade over the Second Amendment, like various gun-related events in recent American history. Well-known right-leaning outlet Fox News wrote about how self-defence and the Second Amendment was under attack in America in the wake of the Rittenhosue trial. Now, certainly the Second Amendment is being threatened by constitutional organists, leftists, and federal supremacists, like the whole Constitution. However, how exactly does and should the Constitution apply to the Rittenhouse case?

          First, should the Second Amendment apply in this case? The reason why so many conservatives/libertarians/populists/all those types of people who fall in the traditional, obsolete “right-wing” designation bark about the Second Amendment, and even the leftists in their own ways, is because they have a crooked view of the Bill of Rights. For example, back in 2017 Republican congressmen wished to pass a national/federal concealed carry law, under the premises that the Second Amendment is a nationwide right and that states not having hardcore gun rights is unconstitutional. Vice versa, the left-wing perception of the 2A being national makes them believe Congress, the Supreme Court, or some other national federal entity can strike down gun laws unilaterally, universally.

What is the truth however? The truth is, while Republicans like to appear like the true constitutionalists and patriots, the rightful inheritors of the Founding Fathers’ dream, they are instead professing a view that postdates them by over a century, and which was started by progressivism! Here is the shocking, little-known truth: the Bill of Rights does not apply to the states!

(Record scratch, screaming, crowd gasping, woman yelling, etc. etc.)

Yes, believe it or not, the Bill of Rights is a set of limitations on federal power, not state powers. Just reading some of the Amendments make this become painfully clear, such as the First (“Congress shall make no law…”) and Seventh (“...no fact tried by a jury, shall be otherwise reexamined in any Court of the United States…”). Most importantly, one should read the Bill of Rights’ preamble (preambles, in the English legal-historical background of American law, defined the purpose of a document):

“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

          As Michael Maharrey says, “The Bill of Rights was intended to ‘prevent misconstruction or abuse’ of the Constitution’s powers as exercised through ‘the government’ – the federal government. Notice the word government is not plural.” 

The idea that the Bill of Rights applies to the states is called the “incorporation doctrine”, which is not detailed in the text of the Constitution, nor its amendments, and did not exist in any form until the case Gitlow v. New York in 1925. Where did the Taft Court get the idea of incorporation from? Well, constitutionally, nowhere, they pulled it out of their butts; ostensibly, they took it out of the Fourteenth Amendment. However, history disproves this idea that the incorporation doctrine can be honestly based in this amendment. 

This matter is covered extensively in the 500-page tome by Raoul Berger, Government by Judiciary. One section of the book covers the matter of incorporation in the Fourteenth Amendment, and I will be taking snippets out of that section to make my case. Firstly, again, the Fourteenth Amendment was never applied in reference to the states, and only the Fed. In 1873, the opinion of the Supreme Court in the Slaughter-House Cases said this:

“Was it the purpose of the Fourteenth Amendment...to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? … We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.”

          Secondly, the Fourteenth Amendment was not even designed to incorporate the Bill of Rights. It was designed to constitutionalize the Civil Rights Act of 1866! This is proven by the testimony of congressmen during the ratification of the Amendment. For example, Senator John Sherman, who said during a ratification campaign, “..the first section [of the Amendment] was an embodiment of the [Civil Rights] Act.” The only thing that came close to incorporation in the Fourteenth Amendment was the so-called “Bingham amendment”, proposed by the Radical Republican John Bingham, which read: “The Congress shall have power to make all laws which shall be necessary and proper to secure to citizens of each State all privileges and immunities of citizens in the several States…” This would have given Congress the ability to dictate the constitutionality of laws to the states, not what is currently in the Fourteenth Amendment. Unfortunately for federal supremacists, “[i]n addition to the Democrats, a great many Republicans...were opposed to [this] amendment” (Kendrick 1897, p. 215, fn. 2). 

          Now, this article, first and foremost, is a discussion of the Kyle Rittenhouse case, not constitutional law/history. Nonetheless, we must set this foundation in order to properly understand the constitutional side of Rittenhouse’s case, if any. So, having discussed this, we have answered, “Should the Constitution apply?” Now, “How does the Constitution apply?”

          Well, understanding that the Second Amendment does not apply, what the Constitution stipulates is that this is a matter of state constitutional law, not federal. Ergo, we must look to the Wisconsin State Constitution for our research. Fortunately, the state’s government has so generously provided us with a digital annotation of their Constitution.

          The right to keep and bear arms is given to the people of Wisconsin by Article I, Section 25 of their constitution, which reads, “The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.” The provided annotation states that, “Under both Hamdan and Cole [Wisconsin state court cases] there are 2 places in which a citizen’s desire to exercise the right to keep and bear arms for purposes of security is at its apex: in the citizen’s home or in his or her privately-owned business.” Now, Rittenhouse was not defending a business he or his family owned, and not even the owners of Car Source permitted Rittenhouse to defend their business. Now, security being ruled out, we only have defense left.

          Could Rittenhouse have acted in self-defense? Well, per Wisconsin law, “ A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person.” So the validity of self-defense is not merely a matter of personal belief, but reasonable belief. This makes sense; if someone is yelling at me and I shoot them, that would be unreasonable, but if someone was yelling at me while trying to batter me and I shoot them, that would be reasonable. With the three people that Rittenhouse shot, was this the case?

          First, Rittenhouse certainly believed he was under mortal threat when he fired his rifle. Although, was what Rosenbaum, Huber, and Grosskreutz did to Rittenhouse reasonably inviting the use of lethal force by Rittenhouse? Well, Rittenhouse claimed and an eyewitness has confirmed that Rosenbaum had lunged towards Rittenhouse before being shot. Anthony Huber was the guy who hit Rittenhouse with a skateboard, an object with more than enough sturdiness to cause lethal damage (inviting reciprocal lethality). Grosskreutz, the one survivor, admitted himself that Rittenhouse did not shoot him until he aimed his gun at Kyle!

          So, in all three cases, Rittenhouse was reasonably acting in self-defense against actors using lethal force. Now, 939.48(1m)(ar)1-2 of Wisconsin’s self-defense statutes claim that the actor (of self-defense, so Kyle) can reasonably claim self-defense if the victim was unlawfully entering/had unlawfully entered the actor’s dwelling, motor vehicle, or place of business. Rittenhouse was not in such a situation, however; he was outside, in the open. However, Kenosha-based attorney Michael Cicchini has explained that this substatute codifies Castle Doctrine into Wisconsin law, and rather than implying that Rittenhouse did not engage in valid self-defense it simply implies that what Rittenhouse did was not a use of Castle Doctrine (rather than dictating legality). So, because of this, Cicchini and Rittenhouse’s own attorney both argue for the validity of his actions being self-defense.

          What about him owning a weapon underage? One statute that applies is 29.304, which places restrictions on gun possession for various age ranges, but no restriction is mentioned for 17-year-olds (the ages >12-16 are mentioned). The age group closest to Rittenhouse, 14-16, is permitted to possess firearms if “accompanied by...a person at least 18 years of age who is designated by the parent or guardian” by substatute 29.304(3)(b)1. I cannot find anything explicitly confirming that Rittenhouse’s parents had given Rittenhouse’s 20-year-old accomplice, Dominic Black, permission to arm their child, however Rittenhouse’s mother has come out in defense of her son’s actions, which is the best evidence we have.

          Substatute 948.60(3)(c) states that, “This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593.” Statute 941.28 prohibits the possession of short-barreled shotguns or rifles, defining short-barreled as a barrel length under 16 inches or overall length less than 26 inches; the standard AR-15, Rittenhouse’s weapon, does not violate either measurement, and there is no evidence that Rittenhouse’s specific AR-15 violated this. We have already looked at statute 29.304, and 29.593 applies to hunting, which Rittenhouse was not in the process of doing.

          So, it seems as if Rittenhouse was not in violation of a single Wisconsin gun law. Are there gray areas, points of contention, and other legal murkiness? Yes, of course, and it probably does not help that I am not a lawyer (not even a Wisconsinite). However, what is certain is that, one, this is not an area of federal constitutional law but of state [constitutional] law, and, two, all the legal muck was able to convince Judge Schroeder.

          I believe Rittenhouse has the best case to make in terms of self-defense. In terms of possessing a firearm under the age of 18, this might be the only thing he could have validly been charged on. But, we have already examined the potential evidence for the dismissal of Rittenhouse’s gun possession charge, so we are back to the ultimate verdict of not guilty on all counts.

The deed has been done. All we need to do is protect Kyle from the rabid onslaught of radical leftists who hate his impediment of their destructive crusade. Like usual, the evidence is stacked against them in this case. But, what else do you expect from people whose entire ideology is based upon revolutionary violence and rejection of intrinsic property rights? Whatever.

Godspeed, Kenosha Kyle.

BIBLIOGRAPHY

• Kendrick, Benjamin B. The Journal of the Joint Committee of Fifteen on Reconstruction (Columbia University PhD thesis, 1914).