What’s Really at Stake in the Rittenhouse Case

In 1994 Utah became the first state to pass what has come to be known as “stand your ground” (SYG). Florida followed in 2005, and since then a total of 34 states have passed similar laws. SYG alters the traditional rule of self-defense, which for centuries has required the defendant to avoid a violent confrontation if at all possible. The only exception to the duty to retreat that the common law recognized was called the Castle Doctrine. Based on the idea that “a man’s home is his castle,” the Castle Doctrine allows one to use force in self-defense without trying to retreat if one is already in one’s own home. Today every state recognizes some version of the Castle Doctrine, and usually extends it to include self-defense exercised within one’s home, car, or place of business. SYG effectively extends the Castle Doctrine to any place one has a legal right to be.

Around the time SYG laws began exploding across the country, advocates of the open carrying of firearms ramped up protests and demonstrations against governments and businesses that attempted to limit the right to openly carry firearms in public.

The two issues are not unrelated. What both have in common is the belief that an armed citizenry is better able to keep the peace than the state. According to advocates of both, Open Carry and SYG complement one another in this respect, making it easier for those open carrying to address what they see as dangerous or disorderly conduct without having to worry that their decision to resort to deadly force will be second-guessed by police or courts who would want to know why they simply didn’t walk away from a confrontation.

Whole books have been written about the psychological and cultural roots of the attitudes espoused by advocates of SYG and Open Carry. But it’s not my purpose here to dissect honor culture or explore how Haidt’s Moral Foundations Theory can explain the differences between liberals’ and conservatives’ attitudes towards guns and self-defense. What I’m concerned with is how the case of Kyle Rittenhouse has become the focal point of a culture war clash over these issues.

Rittenhouse is the 17-year-old Illinoisan recently arrested for having killed two protesters and wounding another during the recent unrest in Kenosha, Wisconsin. Within a day of the incident, the internet and social media were ablaze with debates about whether the shootings were murder or justifiable self-defense. Partisans on both sides picked apart all the available video of the incidents, the police reports, the indictment, and any other materials they could get.

Rather than weigh in on the merits of his self-defense claim, I want to focus on why this case matters so much to so many people that they have already spent so many hours debating it. It comes down to this:

The political Right wants to normalize the idea of openly carrying firearms in public, and promote a particular idea of masculinity that involves never backing down from a confrontation. The political Left wants to challenge these ideas, and instead convince the country that openly carrying deadly weapons is inherently dangerous and provocative, and that there is nothing emasculating about the law expressing a clear preference for de-escalation. While some conservative politicians have claimed that Open Carry reduces violent crime, most criminologists agree that the evidence is mixed at best, and that the adoption of Open Carry has not had an appreciable effect on crime rates one way or the other. https://www.politifact.com/factchecks/2015/oct/09/matt-gaetz/violent-crime-lower-states-open-carry/

But what is indisputable is that SYG has led to an increase in firearms homicides in the states where it has been adopted. The Rand Corporation surveyed seven studies published between 2013 and 2018, finding supportive evidence that SYG significantly increased the rate of firearms homicides. https://www.rand.org/research/gun-policy/analysis/stand-your-ground/violent-crime.html. This is not surprising, since SYG effectively reduces the risk of criminal prosecution for those who resort to violence. In economic terms, resorting to deadly force is less costly in SYG states, and holding all else equal, when something costs less people will buy more of it.

So the Left’s argument, that an armed citizenry will make us less safe, is more in line with the facts. But in clashes between political tribes, facts are often less important than tribal commitments. To the Left, Rittenhouse demonstrates exactly what’s wrong with the idea that private citizens need to step into the role of enforcers of law and order. He went half an hour out of his way, to protect homes and businesses that no one asked him to protect, armed with a weapon of war, and ended up killing two people and maiming another. It is obvious to people on the Left that he was simply asking for trouble, and predictably found it.

It is equally obvious to people on the Right that Rittenhouse was well-intentioned, and that he reasonably felt threatened by the actions of the protesters he shot, and should be allowed to claim self-defense.

It should be clear at this point that endless dissection of video evidence of the shootings will not resolve the fundamental disagreement, because that disagreement goes to the circumstances that led to Rittenhouse’s presence at the protests that night, whether it was appropriate for him to be armed, and what kind of message this case will send to others who may be inclined to take up arms and insert themselves into situations where their presence is likely to cause more harm than good.

If Rittenhouse is convicted, expect fewer people to show up armed at protests or other large gatherings. A conviction will send the message, especially to younger Americans who are still making up their minds about these issues, that the mere act of bringing a firearm to such a gathering creates a dangerous situation for which one may be called to account if things go badly. But if he is acquitted, expect the militia movement to feel emboldened, and to see many more armed civilians at protests and generally in public spaces. Given our country’s troubling history of lynch mobs and vigilantes, all Americans, but especially Americans of color, would be justified in greeting Rittenhouse’s acquittal with trepidation.

An acquittal may have other troubling consequences. I have said the Left generally takes the position that openly displaying firearms is inherently provocative and dangerous, but on the extreme left end of the political spectrum, beyond the liberals and the progressives and into the territory of self-described Marxists and communists, the need to be armed and ready for battle is already accepted with the same alacrity as it is on the Right. The more others on the Left start to see the possession of firearms as the only guarantee that they too will not meet the same fate as Rittenhouse’s victims, the more they may be convinced by the most extreme among them to take up arms as well.

The Right may see this as a victory in their struggle to normalize the public possession of firearms. They shouldn’t. If the Left was as widely and well-armed as the Right, confrontations like the one in Kenosha would look mild in comparison to the partisan street fighting that would erupt around the country. And moderates and independents who had heretofore been skeptical of gun control might start to see the wisdom of doing whatever is necessary to disarm the combatants.

Author of Truth Evolves

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