Kyle Rittenhouse Found Not Guilty: Wisconsin Gun Possession Law Explained

The Kyle Rittenhouse Trial

By the way, I’ve already seen Kyle Rittenhouse books on Amazon! I’m wondering about this person’s interpretation of the Rittenhouse trial.

Rittenhouse (17 at the time) was among the people who traveled to Kenosha, Wisconsin after pleas to come bear weapons to protect the city from the protests of the white officer shooting Blake, a Black man, on August 23.  Rittenhouse shot three men, killing two of them.  He claimed that he acted in self-defense, and he was acquitted based on that affirmative defense. (An affirmative defense is when a defendant admits to the crime, but has a reason under the law for doing so.)

However, the prosecutors had what they thought was a “slam dunk.” Rittenhouse was armed with an AR-style semi-automatic rifle, and he was 17 at the time of the fateful shootings. Wisconsin law prohibits minors from possessing firearms except for hunting or when supervised by an adult in target practice or instruction.

Or does it?

Rittenhouse’s lawyers argued that another subsection of the law regarding short-barreled rifles provided the grounds for dismissing the charge. The prosecutor argued that the defense misread the statute. The judge stated that the statute was confusing and dismissed the charge.

Let’s discuss the laws in detail.

Wisconsin Gun Possession Law

Count 6 was Possession of a Dangerous Weapon by a Person Under 18:

(2)

(a) Any person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor.

(b) Except as provided in par. (c), any person who intentionally sells, loans or gives a dangerous weapon to a person under 18 years of age is guilty of a Class I felony.

(c) Whoever violates par. (b) is guilty of a Class H felony if the person under 18 years of age under par. (b) discharges the firearm and the discharge causes death to himself, herself or another.

(d) A person under 17 years of age who has violated this subsection is subject to the provisions of ch. 938 unless jurisdiction is waived under s. 938.18 or the person is subject to the jurisdiction of a court of criminal jurisdiction under s. 938.183.

(3)

(a) This section does not apply to a person under 18 years of age who possesses or is armed with a dangerous weapon when the dangerous weapon is being used in target practice under the supervision of an adult or in a course of instruction in the traditional and proper use of the dangerous weapon under the supervision of an adult. This section does not apply to an adult who transfers a dangerous weapon to a person under 18 years of age for use only in target practice under the adult’s supervision or in a course of instruction in the traditional and proper use of the dangerous weapon under the adult’s supervision.

(b) This section does not apply to a person under 18 years of age who is a member of the armed forces or national guard and who possesses or is armed with a dangerous weapon in the line of duty. This section does not apply to an adult who is a member of the armed forces or national guard and who transfers a dangerous weapon to a person under 18 years of age in the line of duty.

(c) This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593. This section applies only to an adult who transfers a firearm to a person under 18 years of age if the person under 18 years of age is not in compliance with ss. 29.304 and 29.593 or to an adult who is in violation of s. 941.28.

This law is a bit of a behemoth, so I’ll go through it in pieces.

First of all, Kyle Rittenhouse was 17 at the time that he shot the AR-15. Please note that the AR-15 is used by many hunters even though it’s gotten a bad rap because people use it for mass shootings. I’m not making a statement either for gun rights or for gun restrictions, folks. But I think it’s also important to be informed.

Basically, this law says that people under the age of 18, aka minors, can’t go around carrying a dangerous weapon. But we have to keep in mind that dangerous weapons encompass more than guns or rifles. Knives and explosives also fall under a “dangerous weapon.”

There are three exceptions, which allow a minor to carry around a dangerous weapon:

1. Target practice or instruction.
2. In the line of duty.
3. ” … only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 …”

#3 is the kicker here.

But notice the wording of #1 and #2. These start with “This section does not apply to a person under 18 years of age who …” #3, on the other hand, starts with “This section applies only to a person under 18 years of age who …”

Before interpreting this, here is 941.28.

941.28 Possession of Short-Barreled Shotgun or Short-Barreled Rifle:

(a) “Rifle” means a firearm designed or redesigned, made or remade, and intended to be fired from the shoulder or hip and designed or redesigned and made or remade to use the energy of a propellant in a metallic cartridge to fire through a rifled barrel a single projectile for each pull of the trigger.

(b) “Short-barreled rifle” means a rifle having one or more barrels having a length of less than 16 inches measured from closed breech or bolt face to muzzle or a rifle having an overall length of less than 26 inches.

(c) “Short-barreled shotgun” means a shotgun having one or more barrels having a length of less than 18 inches measured from closed breech or bolt face to muzzle or a shotgun having an overall length of less than 26 inches.

(d) “Shotgun” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder or hip and designed or redesigned and made or remade to use the energy of a propellant in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.

(2) No person may sell or offer to sell, transport, purchase, possess or go armed with a short-barreled shotgun or short-barreled rifle.

(3) Any person violating this section is guilty of a Class H felony.

This law is easy. It just means a short-barrel rifle. Most of us know what a short-barrel rifle is. But, the law defines it too. It’s less than 16 inches measured from the “closed breech or bolt face to muzzle” OR a rifle with an overall length of less than 26 inches.

But remember #3 from above?

” … only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 …”

The defense argued that this is what the law says:

A minor can’t carry around a dangerous weapon UNLESS in

1. Target practice or instruction.
2. The line of duty.
3. Anything other than a short-barrel rifle or shotgun, e.g. a machete or nuclear bomb is okay.

The prosecution argued that this is what the defense was misreading the statute, but I haven’t come across exactly what the prosecution thought the law meant. (If they didn’t come up with an alternative reading, that’s what we call bad lawyering, folks.)

So, once the prosecution admitted that the rifle was not short-barreled, the judge dismissed the charge.

Statutory Interpretation in the Kyle Rittenhouse Trial

In Pennsylvania, there is something called “legislative intent” (which I am sure also exists in Wisconsin) and “absurd results.” This means that when a judge interprets the law, he or she needs to interpret the law in the way that the legislature intended the law to be. Not something that would create an absurdity.

A law reading that a minor could carrying around a machine gun but not a short-barrel gun is just absurd.

In other words, don’t go dismissing charges just because you don’t want to figure something out. (Yes, the judge was being biased here. Totally biased. Whether you believe that Kyle Rittenhouse is innocent or guilty, the judge should be kicked off the bench.)

I personally believe it’s about how the law is worded.

1. This section does not apply to a person under 18 years of age who … uses a dangerous weapon for target practice or instruction.
2. This section does not apply to a person under 18 years of age who … uses a dangerous weapon in the line of duty.
3. “This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28“

941.28 illegalizes the possession of ANY short-barrel gun or shotgun UNLESS you are a member of the armed forces.

Taken together, this means that a person under 18 cannot have a dangerous weapon unless using for target practice/instruction, in the line of duty, or carrying a short-barrel rifle or shotgun, WHICH IS ALWAYS AGAINST THE LAW.

In other words, a minor can NEVER have a short-barrel gun or shotgun under any circumstances UNLESS a member of the armed forces.

My Opinion of the Wisconsin Gun Possession Law

I’m not sure about Wisconsin law, but in Pennsylvania, the prosecution can appeal in criminal cases under certain circumstances. One of those circumstances is a pure question of law, e.g. a judge decides to dismiss a charge based on the wording of the law. Will the prosecution appeal? Unlikely. Should they appeal (if they can)? Absolutely. You can’t have minors running around with machine guns, pistols, knives, explosives, or other very dangerous weapons. That’s what the law is designed to protect. More than likely, however, the Wisconsin legislature will get involved and change the law. That means that Kyle Rittenhouse’s legal affairs are over. At least this time. This young man will face his demons for the rest of his life.