Tali Farhadian Weinstein a former federal and state prosecutor in New York wrote in The New York Times:
As pundits and legal experts consider why Kyle Rittenhouse was acquitted of murder, many have focused on the prosecution’s choices — and possible errors — in the case, or else on the rulings of the presiding judge.
But even more than the prosecution or the verdict, it is really the defense’s strategy that we will have to live with for years to come — a strategy based on a bold and unapologetic acknowledgment of the dangers inherent in carrying a gun. The defense doubled down on the right to bear arms and asserted a right to fire, too. Such a strategy, which has adherents at the poles of the political spectrum, will increase gun violence, not only in red states, but wherever it is allowed to go unchallenged.
A claim of self-defense when you are caught on tape shooting people, as Mr. Rittenhouse was, is predictable. This case was never a whodunit. Instead, Mr. Rittenhouse’s team had to explain why his shooting three people, killing two of them, were not crimes. And what put him in imminent danger serious enough to justify his use of deadly force, according to Mr. Rittenhouse, was the presence of his own gun. Recalling the final moments of his decision to fire at Joseph Rosenbaum, Mr. Rittenhouse testified that Mr. Rosenbaum’s hand was on the barrel of his gun.
As a prosecutor, I have often seen arguments like these during investigations of police officers who have shot and killed unarmed people. In those cases, the officers cite their fear that their own weapons would be used against them. From an armed civilian, this claim is different. Instead of distancing Mr. Rittenhouse from or minimizing the effect of his weapon, Mr. Rittenhouse and his lawyers built their case upon it: Because he had a gun, he found himself in a situation where he needed to use it. In other words, the gun he carried was not a deterrent, but the very reason for the escalation to violence.
Meanwhile, across the country in Georgia, a jury just finished deliberating over a very similar defense strategy. In another shooting caught on tape, Travis McMichael, who shot and killed Ahmaud Arbery, has now been convicted of murder along with his father and neighbor. Mr. McMichael testified that his fear of Mr. Arbery crystallized when Mr. Arbery reached for Mr. McMichael’s gun. That’s when Mr. McMichael started to worry about his child at home, contemplated life and death, and began to shoot. Mr. Arbery was unarmed. “I shot again because I was still fighting,” Mr. McMichael testified. “He was all over me, he was still all over that shotgun, and he was not relenting.” (The jury may have doubted Mr. McMichael’s credibility, since he originally told investigators he was not sure if Mr. Arbery had reached for the gun.)
These assertions of a right to fire exploit standard self-defense laws. In Wisconsin, Georgia, and most states, the law allows you to use deadly force as long as you sincerely believe that you are in imminent danger, and as long as your response is reasonable and proportionate to that danger. Wisconsin, Georgia, and nearly all 50 states even require prosecutors to disprove claims of self-defense beyond a reasonable doubt.
Self-defense laws have ancient roots. They reflect our shared sense that we should be able to protect ourselves and our loved ones. And they are important checks on criminal prosecution. But in states that also have weak gun safety laws — like Wisconsin and Georgia — they have given lethal shooters a path to acquittal, as the attorneys for Mr. Rittenhouse, and now Mr. McMichael, well understood.
What should we do from here? To narrow self-defense laws might seem one obvious answer. But concentrating on the aperture of self-defense, and whether it should be narrower or wider, misses the point.
As I watched the Rittenhouse and McMichael trial broadcasts, I could not help thinking of a case before the Supreme Court right now, New York State Rifle & Pistol Association v. Bruen, in which the petitioners have challenged a 110-year-old law that requires New Yorkers to demonstrate proper cause if they want a permit to carry a concealed gun. It is the first time in over a decade that the court has considered broadening the Second Amendment, and its consequences can be monumental: One in four Americans lives in a place that, like New York, seriously restricts the right to carry a concealed weapon. It tells us why the Rittenhouse and McMichael defenses will continue to matter for public safety across the nation.
As you would expect, this Supreme Court case has generated the usual briefs from gun rights advocates: the N.R.A., gun clubs, libertarian scholars, Republican politicians. What is strange, and disheartening, is that the petitioners have also received support from a group of prestigious and seasoned New York public defenders, who argue that the New York law should be overturned — not really on Second Amendment grounds, but because of the way the law is enforced against their clients, Black and brown, poor defendants who need to carry guns for self-defense. The public defenders argue that, historically, permits have been issued unevenly, and that still today, in many places, it is easier for whites and members of the middle class to get permits than it is for people of color and the poor. And they argue their clients should have guns just like other Americans do. In other words, the progressive left has met far right in describing dangerous streets and the need to be armed on them.
Theirs is not a legal argument but a political one, and is unlikely to sway a Supreme Court focused on the text and original meaning of the Constitution (though the court may find it a useful fig leaf if it decides against New York). It is meant to shock, and it does, in its nihilism — a nihilism that echoes the far-right champions of the men we have seen on trial. Instead of taking guns out of the hands of the Rittenhouses and McMichaels of the world, these progressive public defenders want to level “up”— to make guns more readily available to their clients, to all of us. Their vision, if realized, would make the self-defense claims of Mr. Rittenhouse and Mr. McMichael unremarkable, not only in red states but across the country.
The audacious position taken by these New York public defenders should give pause to anyone tempted to understand, and maybe even discount, the Rittenhouse and McMichael defenses as essentially conservative arguments playing to conservative juries in conservative states. If we start to think of guns only as a problem in the hands of the Other (white supremacists, the far right, criminals), we will miss the simple fact that unregulated guns escalate violence across ideological lines. Their presence tends to create a need for self-defense on both sides of the trigger, about which the law has very little to say. If Mr. Rosenbaum and Mr. Arbery did indeed reach for those guns, weren’t they, no doubt, acting in self-defense? More guns, no matter in whose hands, will create more standoffs, more intimidation, more death sanctioned in the eyes of the law.
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