As the Kyle Rittenhouse trial comes to a close, two things are becoming clear at once. First, absolutely no one should be surprised if Rittenhouse is acquitted on the most serious charges against him. And second, regardless of the outcome of the trial, the Trumpist right is wrongly creating a folk hero out of Rittenhouse. For millions he’s become a positive symbol, a young man of action who stepped up when the police (allegedly) stepped aside.
The trial itself has not gone well for the prosecution, for reasons that relate to the nature of self-defense claims. Such claims are not assessed by means of sweeping inquiries into the wisdom of the actions that put the shooter into a dangerous place in a dangerous time. Instead, they produce a narrow inquiry into the events immediately preceding the shooting. The law allows even a foolish man to defend himself, even if his own foolishness put him in harm’s way.
And so although the combination of video and testimonial evidence shows a confused and isolated 17-year-old carrying an adult weapon in a dangerous place, it also shows that he was chased by his first victim and attacked with a skateboard by his second victim, and that he shot and wounded his third victim when he pulled out his own handgun. Rittenhouse has presented a considerable amount of evidence that he was not a hunter, but instead felt himself hunted, and fired solely on men who he believed presented a direct threat.
The defense has presented evidence not only that Rittenhouse was attacked, but that there was reason to believe he acted—under Wisconsin law—to “prevent imminent death or great bodily harm to himself.” The jury will have to determine whether Rittenhouse’s belief was reasonable, and whether it was reasonable for each person he shot.
The narrow nature of the self-defense inquiry is one reason people can escape responsibility for killings that are deeply wrongful in every moral sense. Take, for instance, cases in which bad cops create danger and confusion through incompetence or excessive aggression, and then they respond to the danger or confusion they created by using deadly force.
Examples abound. Police gave confusing and conflicting instructions to Philando Castile before he was shot and killed, and to Daniel Shaver before he was gunned down in a hotel hallway. The killing of Breonna Taylor is another example—police used terrible tactics, but once an occupant of the home fired on them, a grand jury decided, they were legally entitled to fire back.
When Kyle Rittenhouse walked the streets of Kenosha in the midst of urban unrest following the police shooting of Jacob Blake holding a rifle in the “patrol carry” or “low ready” position, similar to the positions used by soldiers walking in towns and villages in war zones, without any meaningful training, he was engaged in remarkably dangerous and provocative conduct. But that dangerous and provocative conduct did not eliminate his right of self-defense, and that self-defense claim is the key issue of his trial, not the wisdom of his vigilante presence.
But that brings us to the danger of Kyle Rittenhouse as a folk hero. It is one thing to argue that the law is on Rittenhouse’s side—and there is abundant evidence supporting his defense—but it is quite another to hail him as a model for civic resistance.
As seen in Kenosha, in anti-lockdown protests in Washington State, and in the riot in Charlottesville, one of the symbols of the American hard right is the “patriot” openly carrying an AR-15 or similar weapon. The “gun picture” is a common pose for populist politicians. Mark and Patricia McCloskey leveraged their clumsy and dangerous brandishing of weapons at Black Lives Matter protesters into an appearance at the Republican National Convention.
Rittenhouse is the next step in that progression. He’s the “patriot” who didn’t just carry his rifle; he used it.
I am a longtime supporter of gun rights and believe that the Second Amendment’s guarantee of a right to “keep and bear arms” is grounded in an inherent right of self-defense, both inside and outside the home. As a person who’s been threatened more than once, I exercise those rights myself.
But there is also an immense difference between quiet concealed carry and vigilante open carry, including in ham-handed and amateurish attempts to accomplish one of the most difficult tasks in all of policing—imposing order in the face of civil unrest. And there is a dramatic difference between the use of weapons as a last resort, when your life or the lives of others are in immediate danger, and the open carrying of weapons as an intimidation tactic or as an intentionally disconcerting display of political identity and defiance.
Most of the right-wing leaders voicing their admiration for Rittenhouse are simply adopting a pose. On Twitter, talk radio, and Fox News, hosts and right-wing personalities express admiration for Rittenhouse but know he was being foolish. They would never hand a rifle to their own children and tell them to walk into a riot. They would never do it themselves.
But these public poses still matter. When you turn a foolish young man into a hero, you’ll see more foolish young men try to emulate his example. And although the state should not permit rioters to run rampant in America’s streets, random groups of armed Americans are utterly incapable of imposing order themselves, and any effort to do so can lead to greater death and carnage.
In fact, that’s exactly what happened in Rittenhouse’s case. He didn’t impose order. He didn’t stop a riot. He left a trail of bodies on the ground, and two of the people he shot were acting on the belief that Rittenhouse himself was an active shooter. He had, after all, just killed a man.
If the jury acquits Rittenhouse, it will not be a miscarriage of justice. The law gives even foolish men the right to defend their lives. But an acquittal does not make a foolish man a hero. A political movement that turns a deadly and ineffective vigilante into a role model is a movement that is courting more violence and encouraging more young men to recklessly brandish weapons in dangerous places, and that will spill more blood in America’s streets.