[note: some of this concerns discussions I’ve seen in passing on twitter or conversations I’ve had in my personal life, so this will have less direct documentation and links than my usual essays. This essay is less about Rittenhouse’s actual guilt or innocence-I’m not going to be discussing the minutae of the trial much-and more about the lessons that should be taken from it.]
This week the Kyle Rittenhouse verdict came out in his trial related to shooting three people during a Black Lives Matter protest last Augst: not guilty on all counts. Reaction from across the political spectrum has been incredibly polarized, usually along partisan lines. People on the left (with a few exceptions, such as Glenn Greenwald and Jimmy Dore) are generally appalled and disgusted, screaming racism, judicial impropriety, and accusing Rittenhouse of crocodile tears during his crying in court. On the other side, the right and a LOT of libertarians (often but not always Mises Caucus types, and some of the state affiliates) have come out in favor not only of the verdict, but of Rittenhouse’s actions. He has been praised as a hero by many, as a picture of cool and collected self defense in a crisis, and as an antidote to violent rioters and the woke mob.
It seems like both sides have made some critical errors in reasoning, desperate to find either a hero or a villain in a mess that left two people dead and one seriously injured. And the all or nothing arguments have obscured the reality of what happened and what it means in context. At the same time, both sides have made some good points about the reality of our justice system and our society, and its flaws.
On the left, the argument that Rittenhouse crossed state lines never really held water, and was shredded in court. Same for being too young to possess a firearm. While the idea that if minors can’t consent and aren’t legally responsible they shouldn’t be allowed the full exercise of the natural rights of an adult has merit (and opens up a much bigger debate beyond the scope of this essay), under Wisconsin law he was probably ok. And if he was old enough to fully exercise his right to bear arms, the geography shouldn’t matter. Rights are rights, wherever you are. Certainly the law as written, along with the prosecution’s failure to have the gun measured (since the relevant portions hinge on short barreled rifles vs. long guns) is ambiguous enough to make him legal on that aspect of things. And likewise characterizing the AR-15 as a “high powered rifle” is a bit of a misnomer. Anything more powerful than a BB gun can be lethal pretty easily. They’re not designed to be squirt guns.
More seriously and more defensible, friends of mine have raised the contention that self defense laws as written, combined with a still too racist society, give people open license to murder minorities as long as they can scream self defense afterwards. They cite numerous examples of cops “fearing for their lives”, along with George Zimmerman. They argue that this case shows the need to reform self defense laws, and that it will have a chilling effect on protests. While I can see why they’re concerned, I don’t think this is a completely fair comparison. Rittenhouse was being attacked right before at least one of the shootings, and was definitely on the opposite side (of the issues) of most of the protestors. More knowledgeable people than myself have waded through the minutae of law (you can read the relevant WI statues here) and made the case that legal innocence rested on whether Rittenhouse had moved back into the legal prerequisites for self defense for each shooting, regardless of what brought him there . I’m not a trained lawyer, and this is more complicated than simply saying to the typical politician “hey asshole, follow your oath of office!”, so I can’t comment on the validity of this line of reasoning. But what I can say is there’s enough there there to make it a real question.
I don’t think this trial raises huge implications of law. Wisconsin self defense statutes include a duty to retreat and specify that only life can be defended with lethal force, not property. And I think no matter how self defense law is written, there will always be situations that are very clear cut, and some that are ambiguous enough to be matters for a judge and jury. In that regard, at least, the system worked as it should. Likewise, I don’t think there’s any real implication for gun laws either way here. Rights come with consequences, and sometimes people use their rights really stupidly, to the point where they need to be punished for it. Whether that punishment comes in a court of law or the court of public opinion depends on the nature of the stupidity, of course, but both are valid and necessary. Here while you can certainly argue that there wasn’t enough consequences in either court, Rittenhouse was arrested and at least faced the threat of serious consequences for his actions. The system churned on him rather than simply ignoring him.
On the other side we have a number of errors as well, and since this side includes a lot of people in my camp I find their errors a lot more disturbing and/or infuriating. Let’s start with “he was just there to protect property”. If that was the case, how come we had an entire year of Black Lives Matter protests that often had Redacted Bois guarding property and supporting the protestors with essentially no incidents that I know of, except for Garret Foster (RIP) getting run over by a counterprotester. If he was there to defend property he did a crap job of it, and given that it wasn’t his property it didn’t justify lethal force to defend. Holding Rittenhouse in the same light as Kenneth Walker (and by extension capitalizing on Breonna Taylor’s death) is not a good look. Walker and Taylor were in a private residence, assaulted by agents of the state acting in bad faith under laws that should never have existed in the first place. Rittenhouse…far more questionable (more on that later). Bringing up the criminal pasts of those that were shot is simply idiotic; however horrible they are (and they’re not good) either Rittenhouse had no way of knowing who/what they were beforehand or he went to the protest to shoot those three specific people. One assertion is dumb and insane, the other is simply dumb and irrelevant.
Most important is Rittenhouse’s character. He was not, to put it mildly, a moral exemplar. It came out pretty quickly after his arrest that he was a cop worshipper, and then he partied with Trumpers after his release. Partying with Trumpers perhaps doesn’t automatically make one a racist, but it’s certainly strong evidence in that direction. When I’ve made this argument in online discussions the response has usually been Biden whataboutism or pointing out some of Trump’s policies and reforms, which did include some minor criminal justice reform. Here’s the thing though-both Trump and Biden said a lot of horribly racist things and implemented a lot of horribly racist policies, usually connected to immigration, empire, and the drug war. @#^! them both for it. But it was only Trump that had a large number of avowed racists and nationalists among his supporters. Trump voters may not have all been racist, but they joined the fandom with all the racists and were ok with that. It tars anyone still in a MAGA hat with an ugly brush.
This is not to say that all of the keyboard pounds spent on this haven’t gotten anything right. The allegations of judicial bias and prosecutorial incompetence ring very true. Introduction of evidence painting Rittenhouse as a racist was disallowed, and that could have gone strongly to motive, which would seem to be important in relation to a claim of self defense. The prosecutor pointing a potentially uncleared weapon, with his finger on the trigger, at a jury (although the details are disputed) was insane. On the other hand, a defense lawyer acquaintance of mine has argued that the public eye on the case forced the judge and prosecutor to do their jobs, and that most prosecutors are generally incompetent, but are granted wide latitude by judges. Also, this slate article characterizes judge Bruce Schroeder as generally pro-defendant-this time the defendant happens to be white and high profile. I would guess that most of the people yelling about Klan robes under Schroeder’s judicial one would probably agree that the justice system tends to railroad the accused and favor incarceration over conviction. There is a potential disconnect here.
The comparison with women in jail for killing their abusers absolutely has merit. The immediate solution would be jury nullification, but over the longer term carving out exceptions in self defense law specifically to cover this is probably a good idea. How exactly to word this I’m not entirely sure, and I welcome suggestions. Many of these situations would most likely still be matters for a jury, but given how insidious and long lasting domestic abuse can be, and how destructive mentally and physically it is for its victims, protecting them from punishment for defending themselves seems like a necessary thing.
Finally, there’s one more bad argument that brings me to the two things at the heart of what bothers me about all of this. Many on the pro-Rittenhouse side have asked “how can Rittenhouse be racist? His victims were white!”. There’s been a lot of screaming about the woke mob, and how Black Lives Matter is this evil communist group (that one is an easy refute, and I’ll take it on again later in this essay), and how it wasn’t really a “peaceful” protest.
All of that misses context, and context matters here. Ultimately both sides are so focused on what they want to see that they can’t see the full picture. The left can only see how Rittenhouse fits into the broader social and historical narrative, while Rittenhouse’s supporters can only see his actions in microcosm and isolation during each specific shooting. One misses the points of law and what may have been legitimate actions of self defense, while the other doesn’t ask the important questions of how this happened in the first place. What started this all? Sure, it was a riot. Protests aren’t always peaceful, which begs the question why were people pissed enough to riot in the first place? 2020 was the year of Black Lives Matter protests across the country as a lot of people got very pissed off at years of police murdering people, usually not white people, and facing zero repercussions for it. These shootings ranged from people who may well have been guilty (and had criminal pasts) to children, and were never about situations where officers were being fired upon. Much of this happened in the context of the drug war, which is arguably the most horrible thing that government has done to its own people post-slavery. For libertarians, I have to remind too many of us again that we’ve been opposed to the state murdering people since before our movement had a name. We’ve also been arguing for the moral legitimacy of violent revolution and shooting back for just as long, even though most of us hope that such times never come to pass and that real change can come either through the political system, building competing institutions, or both. Sure, we can be dismayed that a lot of the rage tends to be directed at private businesses and residences rather than police stations and legislative headquarters, but it shouldn’t be any kind of stretch to understand why the rage exists in the first place. Yes, much of the leadership of the Black Lives Matter movement came from the left, including some outright communists. So? They’ve also done more to bring attention to a core libertarian issue in a year than our movement has done in three decades. While the contention that the Black Lives Matter movement has been co-opted by the Democratic Party is very valid (and a hell of an argument for voting third party), dismissing a whole group of people that are angry about some of the same big things we are because they started from a different point on the Nolan chart is stupid.
One commenter argued that Rittenhouse’s cop worship can be dismissed at the naive beliefs of a young kid. This is fine as far as it goes, but lots of kids draw tanks and planes as a kid, or dress as a cop for Halloween before growing out of it as they get older. Most of them, however, don’t actually steal a tank and run over people with it, or go out and shoot people thinking they’re helping. He may well be young and dumb, but his actions crossed big lines into serious consequences and went a lot farther than the usual young and dumb sort.
It’s easy enough to dismiss conservatives as simply pro-cop, racist to one degree or another, or both. I think libertarians, on the other hand, are so concerned about gun rights and the right of self defense that we often can’t see anything else. It’s like our version of one of the great moments from The Boondocks. To riff a bit on Huey’s speech towards the end, not every person with a gun made a heroic last stand against a rape gang! Yes, the government does conspire to put a lot of people in jail (or straight up kill them) for acting in self defense, and yes the right to bear arms is still under constant legal and legislative assault. But just because someone has rights doesn’t mean that every use of those rights is smart or moral. Rights should not mean freedom from consequences when those rights are abused or otherwise used stupidly. Again, those consequences can come in a court of law or the court of public opinion, depending on the nature of the stupidity, but we can’t be so zealous in our defense of rights that we’re blind to the context of their use. If we can’t defend someone’s right to do something while also acknowledging that what they did was terrible, or supporting terrible people, or just really dumb we’re doing it wrong.
I think that’s at the heart of it all. The ex-Republican chunk of the libertarian movement is so suspicious of anything that smacks of communism, and so paranoid about gun control (and not entirely without reason) that they can’t see that even if he was a dumb and naive kid, Rittenhouse was a cop worshipper and probably a racist on the wrong side of a protest against state murder. Yes, he had the right to be there. Generically speaking, he had/has the right to defend himself, and in the moment it’s very arguable that he was defending himself. Even if he was legally right, which he may well have been, he was morally wrong. He should have been allowed to be at that protest, but he shouldn’t have been there. He should be allowed to hold his beliefs, but his beliefs are wrong. He has the right to defend himself, but he shouldn’t have been in the situation where he needed to in the first place. To hope for his acquittal is defensible. To hold him up as any kind of hero, anything other than either a piece of crap or young and dumb is deplorable.
Finally…I wish this wasn’t a footnote, but unfortunately it fits. The country has spent several weeks talking about this dumb white kid, which has sucked all the metaphorical oxygen away from what the protests were about in the first place. People are still being shot by police. Gods help you if you’re mentally ill and have a runin with the cops. The drug war is still a thing, with too many people in jail for bullshit as a result. Occupational licensing that stifles the poorest from working and holds convicted felons back from better jobs is still all too prevalent in our country. The bigger structural factors behind poverty and racial injustices are still there. What those factors are can and certainly is debated between, say, the left and libertarians, but either way they’re still there. Where is the outrage over any of that? Electing a Democrat (especially the particular Democrat) didn’t fix any of that. When will there be enough anger again to truly change things?