Attorney John Pierce. Photo courtesy of Mr. Pierce.

Make no mistake, America, nothing less than your God-given right to defend yourself, your family and your country is on trial in Kenosha, Wisconsin. Watch closely, and hold your government accountable.
— Attorney John Pierce

Run rights advocates and those familiar with the laws surrounding self-defense have bees saying — since the video came online — that by any legal definition, Kyle Rittenhouse was legally defending himself when he shot three men (killing two) when he was attacked in Kenosha last month. Even those on the anti-gun left who have taken time to read the law and watch the video evidence are coming to the same conclusion.

This is an obvious case of Kenosha District Attorney Michel Gravely wildly overcharging Rittenhouse in order to appease the mob. But what about the misdemeanor charge of possession of a dangerous weapon by a person under 18?

Rittenhouse’s attorney has been saying that he possessed the rifle he used that night in Kenosha lawfully, even as a seventeen year-old, despite a law seemingly forbidding it. I had wondered if he would base his argument on Wisconsin Code 948.60(3)(c) which lists some exemptions. But no; it’s much better than that.

Was Kyle Rittenhouse’s possession of a gun protected by the Second Amendment?

Rittenhouse’s attorney, John Pierce of Pierce Bainbridge, plans to fight the underage weapons possession charge, arguing that at 17, his client could be part of the “well regulated Militia” mentioned in the Second Amendment to the U.S. Constitution. Put another way, Pierce will likely argue that Wisconsin’s ban on firearms possession by 17-year-olds is unconstitutional because a 17-year-old minor is on the same Second Amendment footing as an adult.

In fact, the reason Mr. Pierce claims that a seventeen year-old could be in the militia is that current federal law says so.

10 U.S. Code § 246 – Militia: composition and classe

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

I’ve spent thirty years raising that 17-year-old 2A militia point, mostly to watch with amusement the shock and disbelief on faces as anti-gun types discover that they are in the militia.

I’m going to make a prediction.

If that charge goes to trial, the court will not allow the argument, and Kyle will be convicted. The conviction will be upheld at every level until the Supreme Court simply denies cert, and never hears the case.

Instead, I suspect Kenosha prosecutor Michael Graveley will quietly drop the unlawful possession charge, with little more explanation other than such a comparatively minor charge is a distraction when we have all these serious felonies to prosecute…because no one wants to open that can of worms. And the prosecution is holding a can opener.

Gravely had no comment on how willing he is to use it. While I’d dearly like to see that can opened, Mr. Pierce’s first duty is to his client.

Let’s say the SCOTUS did take the case. They could uphold the conviction, or find in Kyle’s favor.

Upholding the conviction means finding 10 U.S. Code § 246 invalid. But that’s the basis for age limits for military enlistment and draft registration. That would create a mess that Congress would have to scramble to fix.

On the other hand, vacating the conviction and upholding 10 U.S. Code § 246 has a lot more problems.

Problems like the Gun Control Act of ’68 age limits. State age limits on possession of a firearm. All those laws would have have to be revised to allow possession by seventeen-year-olds of long guns and handguns, thanks to the Heller decision that the Second Amendment protects handguns (and McDonald incorporated the 2A to the states).

I would also expect law suits challenging anything but hardcore “shall issue” concealed carry licensing. California, New York, Jew Jersey et al. would collectively excrete a very, very large brick.

Such a ruling would also torpedo much of the Biden/Harris victim disarmament plan.

This is the case for which I’ve been waiting three decades. And it probably won’t be resolve now.