Kyle Rittenhouse, a 17-year-old supporter of President Donald Trump and police who is accused of fatally shooting two men in Wisconsin last week, is expected to unveil a rather extraordinary legal argument as part of his defense.
Rittenhouse is being charged as an adult with six criminal counts: first-degree intentional homicide, first-degree reckless homicide, two counts of first-degree recklessly endangering safety, attempted first-degree intentional homicide, and possession of a dangerous weapon by a person under the age of 18. The first five are felonies; the weapon possession charge is a misdemeanor. While Rittenhouse’s attorneys will likely combat the various homicide charges by claiming self-defense, NBC News reported on Monday that Rittenhouse’s attorneys are planning to fight the possession charge by arguing that Rittenhouse was acting as part of a “well-regulated militia” under the Second Amendment.
According to the report, Rittenhouse’s attorney John Pierce–who previously represented President Trump’s personal attorney Rudy Giuliani and former Trump campaign foreign policy adviser Carter Page–is likely to argue that Wisconsin’s ban on firearms possession by persons under 18 violates the U.S. Constitution because a 17-year-old minor has the same Second Amendment rights as an adult.
“Therefore, the argument goes, the Wisconsin law unconstitutionally restricts Second Amendment-protected firearms possession,” wrote attorney and NBC legal analyst Danny Cevallos. “Pierce will likely add that the American colonies expected, and sometimes required, citizens under 18 to have and bear arms.”
Cevallos noted that late Supreme Court Justice Antonin Scalia expressly stated in 2008 that the Second Amendment’s right to bear arms was “not unlimited.” That was in the U.S. Supreme Court’s seminal gun rights case District of Columbia v. Heller. Scalia also noted the constitutionality of “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Cevallos, a criminal defense lawyer, called the defense “a reach” that is “not likely to succeed,” a sentiment that was widely shared but more scathingly expressed by other attorneys.
Washington D.C.-based national defense attorney Mark Zaid, who previously represented the Ukraine whistleblower, called the argument embarrassing.
“Personally, I’d be embarrassed to make this legal argument,” he tweeted. “But seeing the other cases this attorney has handled, makes sense.”
“This is actually a really good argument if you’re trying to get convicted,” quipped Nashville-based litigator Daniel Horowitz.
https://twitter.com/Scot_Blog/status/1300637950116540416?s=20
Andrew Fleischman, an Atlanta-based trial attorney, had a similarly caustic take on the proposed defense.
“Seems lazy to claim the client is a militia when you could really go for it and say he’s a federal bank in Maryland or that charging him with murder violates the Dormant Commerce Clause,” he remarked.
Criminal defense attorney Janet Johnson agued that, under the circumstances, such a defense “is not available” to Rittenhouse.
“To start with, he illegally possessed the gun and traveled to Wisconsin with it. This defense is not available to him. Period,” she wrote.
Other lawyers’ takes were also quite disparaging.
Former DOJ civil rights attorney Sasha Samberg-Champion:
https://twitter.com/ssamcham/status/1300643493736570880?s=20
Former federal prosecutor Renato Mariotti.
John Pierce has done interviews with Breitbart’s Joel Pollak and Fox News’s Tucker Carlson. Pierce asserted that his 17-year-old client from Illinois had “every right — just as much a right — to be [in Kenosha] as the people that were trying to burn down that city, and he was attempting to protect property and attempting to be there to provide medical aid.”
“Kenosha was burning, and he took a rifle so that he could protect himself if he needed to — and to protect property and to protect others,” Pierce continued. “This is one hundred percent self-defense. It’s not even close. Kyle was actually attempting to put out a dumpster fire that the rioters had set.”
Pierce repeated this argument during an appearance on Tucker Carlson Tonight.
[Image via ABC 7 screengrab]
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