Kenosha Shooter’s Defense Is a Gun-Rights Fantasy

(Bloomberg Opinion) -- Lawyers for Kyle Rittenhouse, the seventeen-year old charged with murdering two peaceful protesters in Kenosha, Wisconsin, say they are going to raise a Second Amendment defense to one of the six criminal charges he faces — that of unlawful possession of a firearm by a person under the age of eighteen. As reported in some outlets, the defense would claim that the law doesn’t apply to Rittenhouse because he was a member of a “well regulated militia” under the Second Amendment.

Framed that way, the defense is genuinely wacko. The militias contemplated by the Second Amendment were state-controlled units, not armed vigilantes. Ever so slightly more plausible, however, is the related argument that the right to bear arms should treat seventeen-year olds the same as eighteen-year olds. Although this argument won’t win in court, it does raise the issue of which constitutional rights should belong to underage teenagers and which kick in at the age of majority.

To dispense with the truly crazy part first, rest assured that no court has ever found or will ever find that self-organized vigilante militias are specifically protected by the second amendment.

The amendment reads: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” What the framers had in mind was their deep, small-r republican distrust of standing armies. Drawing on the example of ancient Rome, the framers feared that the generals at the head of standing armies would use their troops’ loyalty as a tool to subvert elected leaders and become dictators. Instead of a standing army, they preferred citizen-militias: official, state-organized and controlled military units made up of ordinary people who held day jobs, ideally as hearty yeoman farmers. The right to “keep and bear arms” in the Second Amendment was, in the original understanding, a collective right of the “people” to belong to these state-run units.

In the U.S. of the late eighteenth century, the militias all came under state law and control. It follows that armed vigilante groups are not militias under the terms of the Second Amendment. (It also follows that, as a matter of original meaning, the right to bear arms shouldn’t cover private gun ownership outside the militia context. But that’s a much bigger discussion for another day and another column.)

Rittenhouse’s lawyers therefore can’t claim that he belonged to a Second Amendment-recognized militia unless they want to be laughed out of court.

What they can do, however, without invoking quite so much judicial ridicule, is to challenge the constitutionality of the Wisconsin law that makes it a crime to possess a weapon if you are under eighteen.

On its face, such a constitutional challenge also may sound pretty absurd. There are lots of things that the law allows us to do only when we hit a certain age: driving, voting and drinking are all salient examples. The basic idea in each case is that we recognize that the underlying activity requires some degree of mature judgment. And although not everyone becomes mature at eighteen or twenty-one, we acknowledge that the law needs to draw a bright line rather than taking every individual case one at a time.

On closer examination, however, these examples don’t immediately end the conversation. Driving a car isn’t a constitutional right specified in the document itself. The eighteen-year voting age is a little different: it’s actually written into the constitution, so by definition, it can’t be unconstitutional. As for drinking, that too is not a constitutional right, notwithstanding the repeal of Prohibition. Any state could outlaw drinking if it so chose, at least under current law, the same way that states may choose to outlaw or permit marijuana.

To make the argument for teenage gun rights, Rittenhouse’s lawyers would do best to draw an analogy between the Second Amendment and First Amendment. Children have First Amendment free speech rights, as the Supreme Court held in the landmark 1969 case, Tinker v. Des Moines Independent Community School District. In that case, sometimes considered the Brown v. Board of Education of children’s rights, the Supreme Court upheld the right of middle school and high school kids to wear black armbands protesting the Vietnam war.

Like the First Amendment, the Second Amendment is written into the constitution with no age attached. So, the argument would go, it should apply to kids.

The Supreme Court has recognized that the states may impose “reasonable” restrictions on the right to bear arms. So the issue before a court would be whether it’s reasonable to say that kids under eighteen lack the maturity and judgment to possess lethal weapons.

Rittenhouse’s lawyers have signaled that they may claim that children under eighteen served in colonial militias. But the whole concept of age and maturity of judgment was radically different in the eighteenth century — so much so that social historians have traditionally argued that “childhood” as we know it is an invention of the Victorian era. Children in the colonial era and well into the nineteenth century worked full-time in fields and factories, frequently in dangerous jobs. There was no drinking age until the modern era. What might have seemed reasonable two hundred years ago is not a good indicator of what is constitutionally reasonable today.

Finally, there is the old-fashioned question of common sense. If teenagers can carry weapons, what is the appropriate age cutoff? Should a thirteen-year old be allowed to bear arms? What about a nine-year old? This reductio ad absurdum should suffice to demonstrate why Rittenhouse’s argument will fail.

All this might make you ask: Why bother to raise this losing challenge, especially in a case where gun possession is the most insignificant charge? Sadly, the probable answer is that Rittenhouse’s lawyers are trying to win sympathy for their extremely unsympathetic client by raising the hot-button topic of the Second Amendment. When I googled the words, “Rittenhouse defense” in preparing this article, the autofill suggested, “Rittenhouse defense fund” as the first option. One Rittenhouse defense fund has already raised over $300,000. Their legal arguments may be too thin for a court of law, but not, it would seem, the court of public opinion. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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