Kyle Rittenhouse, Open Carry, and the Breaking of Self-Defense Law

Kyle Rittenhouse, Open Carry, and the Breaking of Self-Defense Law

Earlier today I published a piece over at The Atlantic that makes two arguments. First, Kyle Rittenhouse wasn’t a hero. He was remarkably foolish to grab a rifle and insert himself into Kenosha’s unrest. He had no business walking into that fray. Second, his foolishness did not eliminate his right to self-defense. At a surface level, these assertions are both common sense and legally quite basic. American self-defense law is relatively simple and easy to understand. While there are state-by-state permutations and subtleties, it goes something like this: If I’m attacked, absent a duty to retreat (which doesn’t exist in all jurisdictions and is subject to its own limitations), I can respond with proportionate force sufficient to address the threat. If someone punches me, I can punch back. At the same time, regardless of the kind of weapon used against me (even if it’s just fists), I can use deadly force if I reasonably fear that I face imminent death or grave bodily injury. I cannot, however, initiate a violent encounter and then use deadly force whenever that encounter goes badly. Good luck claiming self defense if you start punching someone and then kill them when you believe they’re gaining the upper hand. If you’re going to use deadly force, you have to first do all you reasonably can to end the encounter. The Wisconsin self-defense statute —the key statute at issue in the Rittenhouse trial—is representative of these principles. Here are the key provisions. First, the general statement: […]

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