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In the Rittenhouse Case, Justice Is (to Some Extent) in the Details

photograph of Lady Justice figurine

The reactions to the Rittenhouse verdict from the right and left have been depressingly predictable. The right — at least, the MAGA right — has chosen to elevate Rittenhouse to the status of folk hero, an everyman vigilante in the grand tradition of real-life subway shooter Bernard Goetz or the fictional Dr. Paul Kersey of the Death Wish film series. (These references to the ‘70s and ‘80s should remind us that we’ve been here before). On this telling, Kyle Rittenhouse did nothing wrong by toting an assault rifle to a riot in order to protect other people’s property — in fact, his behavior was commendable because it helped bring law and order to a chaotic situation. Among other things, this story overlooks the fact that Wisconsin law categorically forbids the use of lethal force for the sole purpose of defending property. So, if Rittenhouse had used his weapon for that purpose, he would have broken the law. How threatening to break the law helps impose law and order is, frankly, beyond my powers to explain.

Meanwhile, the left has portrayed the Rittenhouse case as another example of how our justice system is broken. From this perspective, whether or not the jury’s application of Wisconsin self-defense law was reasonable is really irrelevant; what matters is that it was legal for Rittenhouse and others to traipse around Kenosha playing soldier, and that two men ended up dead without anyone being held legally accountable. On top of this, there is the fact that the verdict may very well have been different if Rittenhouse had been a person of color.

These perspectives on the case have something in common: they both minimize the importance of the narrow question, did Rittenhouse act reasonably in self-defense? For the right, the morally important thing is that Rittenhouse killed some scumbags for a good cause; whether he did it in self-defense is almost beside the point. For the left, the morally important thing is that various structures — legal (open carry laws, defendant-friendly self-defense laws), political (Republican domination of state legislatures through gerrymandering allowing passage of those laws), and social (white privilege causing police to treat white shooters differently from Black) — determined the verdict. Again, the granular details of the case, the kinds of details that would help us determine whether or not Rittenhouse acted reasonably in self-defense, fade into the background.

Without question, the left’s view has more truth in it than the right’s. It should go without saying that it is morally reprehensible to shoot a person for destroying property, or that it is morally irrelevant that Joseph Rosenbaum, Rittenhouse’s first victim, was (perhaps) a registered sex offender. Vigilantism might slake a primal thirst for vengeance, but it is among the slipperiest of moral slopes.

Still, I think the left misses something important by omitting examination of the case details. To see this, consider the following (slightly involved) counterfactual. Suppose that Trump is assassinated by a Chinese-American, touching off protests and then riots in parts of cities where many businesses are owned by Asians. Some left-wing folk from the surrounding area bring weapons to protect Asian-owned property. Among them is Brian, a 17-year-old gun enthusiast and lifeguard.

At some point during the night, Brian wanders from the store he came to guard and approaches some rioters. At the subsequent trial, Brian’s counsel presents eyewitness evidence that one rioter shouted at Brian that he was going to kill him; others testify that this rioter was hyper aggressive and belligerent that night, although a prosecution witness, another armed left-wing guardian of property, testifies that he was a “clown.” In turn, the prosecution presents blurry video footage and stills that it claims shows that Brian pointed his weapon at one of the rioters, but the footage is difficult to interpret. There is no dispute about what happens next: the rioter takes off after Brian, and Brian runs away. He flees into a parking lot where — and this is disputed at trial — he may be boxed in by some parked cars. He wheels around. The rioter screams “fuck you!” and charges toward Brian, while a nearby rioter fires a pistol into the air. Prosecution witnesses testify that a moment later, the rioter tried to grab Brian’s gun. In any case, autopsy evidence later shows that the rioter’s hands were at least very close to the barrel of the gun. Brian fires four times in less than three-quarters of a second — the first shot shatters the rioter’s pelvis, but it is the third shot into his back that kills him.

Brian flees the scene, pursued by a group of rioters, many of whom quite possibly believe that Brian is an active shooter. Some throw rocks at Brian. One rioter wielding a skateboard catches up to Brian, and whether because the rioter strikes him with the skateboard or because he just trips — this is a disputed point — Brian falls down. Fortunately, this scene is captured by cell phone cameras at very close range, so there is much less dispute about what happens next. Another rioter attempts to kick Brian in the face; Brian fires two shots at him as he rolls on the ground, but both miss. The rioter with the skateboard hits him with it, then tries to grab Brian’s gun. Brian shoots, hitting the rioter in the chest. A third individual, who is holding a pistol in his right hand, is at that moment raising his arms. Then the armed man lowers his arms and walks around Brian. At that moment, it is unclear whether the armed man points his pistol at Brian. Under examination by defense counsel, the man himself testifies that he did, but he later recants that statement. In any case, Brian then shoots the armed man, blowing off his right bicep. Brian gets to his feet and flees.

Suppose that a jury acquits Brian, accepting that the prosecution had failed to prove beyond a reasonable doubt that Brian had not acted in self-defense. Frankly, I find it hard to imagine that the left-leaning commentariat would celebrate Brian as an everyman vigilante (although perhaps some would lionize him as a warrior for racial justice). Perhaps it would concede that the 17-year-old shouldn’t have been there, and that open carry laws encourage such vigilantism. Still, I think the left would focus on the details of the case and of the relevant law. In other words, the left would take Brian’s self-defense claim seriously.

Sometimes, considering these kinds of counterfactuals can help us see things with greater moral clarity. On the other hand, sometimes they just reveal a bias. I do not, however, think that’s the case here. The left would be right to focus on the details of Brian’s self-defense case. By the same token, despite the many structural factors that shaped the outcome of the Rittenhouse trial, whether or not Rittenhouse reasonably feared for his life in the moments leading up to the shootings is morally relevant, because it determines the fairness of punishing him. As long as we continue to believe that people are fairly punished only when their action reveals some fault, their state of mind when acting will be of paramount importance.

This brings me to the question whether the Rittenhouse verdict shows that the justice system is broken. I think it’s a mixed picture. On the one hand, Wisconsin’s permissive open carry regime is a travesty. One could also argue that the Wisconsin self-defense law should require the defendant to retreat before using lethal force, even if he has not provoked the attack. I’m not sure that would have made a difference in the Rittenhouse case, but it’s a reasonable proposal. One could also argue that the burden of proof should be on the defense to prove that the defendant acted in self-defense, not on the prosecution to prove that he didn’t. But changing the law in this way is the job of the legislature, not the courts. Moreover, the jury members in the Rittenhouse case clearly took their job very seriously, deliberating for almost four days, reviewing many hours of video, and taking copious notes throughout the trial. This was not an easy case for a jury: it required making highly fact-intensive judgments about the reasonability of a person’s fear in a very chaotic situation. Given the law and the facts, the verdict was at least reasonable. Finally, the possibility that had Rittenhouse been Black, the verdict would have been different does point up the failures of the justice system, but it does not make the Rittenhouse verdict itself unjust.

Undeniably, the Rittenhouse case should prompt a reexamination of state firearms and self-defense laws. But certainly in a procedural sense, and at least partially in a substantive sense, the verdict itself was not a miscarriage of justice. The trial elicited a wealth of relevant factual detail through adversarial presentation, and the jury applied the law to that body of facts in a careful, reasonable way, focusing on the undeniably morally relevant issue of the reasonability of Rittenhouse’s fear. The Rittenhouse verdict is not all bad news.

Background Checks for Alcohol: A Response

photograph of gun with bullets and glass of alcohol on table

The other night, my wife and I went to our local brewery. They had posted on Facebook that their Double IPA is back. It is, and this is no exaggeration, one of the best beers I have tasted – strong, without being overpowering, and a smoothness rarely found at such an ABV. I had two pints of it. Tonight, I’ll have a couple of glasses of wine with a few friends.

None of this should sound particularly controversial. But, in a thought-provoking piece in this venue, Tim Hsiao argues we should treat this like buying a firearm, and if there should be background checks for firearms then there should be background checks for buying alcohol (and if there shouldn’t be checks for alcohol, there shouldn’t be checks for firearms). I want to probe his argument by looking at some of the background assumptions in place.

Every few months, there seems to be a piece on Americans’ relationship with alcohol (sometimes sponsored by companies with a vested interest in stoking some fear). A recent piece by Kate Julian in The Atlantic is badly titled “America Has a Drinking Problem.” It’s a bad title because it falls into the trope of always writing about drink in terms of a problem, but the piece is much more nuanced: “Am I drinking too much? And: How much are other people drinking? And: Is alcohol actually that bad? The answer to all these questions turns, to a surprising extent, not only on how much you drink but on how and where and with whom you do it.”

The conclusion is that the sort of drinking I spelled out in the opening paragraph is good. Summarizing Edward Slingerland’s Drunk, Julian notes how drinking helps us be more creative and enhances social bonding. And she points out that, especially after the asocial years of pandemic living, being sociable is positively good for us and supports our health.

But not all social drinking sees the benefits outweigh the cost. Drinking can make us aggressive, damage our livers, and can be addictive. But what is key, and what Julian stresses, is that there are different forms of drinking. And there is a large class of drinking – moderate social drinking – that has a substantial benefit.

To recognize this undermines Hsiao’s argument that we should treat firearms and drinking the same. His argument is that alcohol abuse causes more deaths than firearm use and is involved in many more crimes. But this blunt comparison runs all forms of drinking together and ignores the benefits. The fact that a large class of drinking plausibly is a net social good means that Hsiao must do much more work to reach his conclusion. He needs to show that firearm ownership is as beneficial as drinking and that the costs of background checks are similarly proportionate. Otherwise, the analogy falls apart.

But what are the net benefits of firearm ownership? For one, there is hunting, which provides both a source of nutrition and an important social activity for many. But a 2013 study found that around half of gun owners own a firearm for self-defense purposes. There is an argument – a contested one – that owning a gun for self-defense actually increases your risk of harm, because it increases the risk of an accident, misuse, and even suicide. Further, the U.S. has a much greater rate of gun violence than other wealthy countries, many of which have stricter controls on gun ownership.

So, we have seen a plausible argument that alcohol consumption is (in general, or at least in a major set of cases) good, and have also seen a plausible argument that owning a gun – given the risk of misuse, accidents, suicide, or violence – may well be a net negative. Plausibly, we can increase the chance that firearms are used properly if we mandate background checks that increase the likelihood that firearm use will be a net positive: appropriate self-defense or hunting, say.

Perhaps this sets up an argument that some firearms and some drinking should not face background checks, but others should. But the other side of the coin is that background checks on any form of alcohol consumption will be much more onerous than checks on firearms. For one, alcohol is more immediately consumed than firearms are used. After all, few people buy a firearm for immediate self-defense or a last-second hunting trip, but we buy beers for immediate consumption or a bottle of wine to take to a dinner party.

Further, there are many more individual transitions involving alcohol. Americans buy around 40 million firearms a year and there are around 400 million firearms in the U.S.. According to one estimate, the average drinking-age adult drinks around 200 pints of beer a year (to say nothing of cider, wine, or liquor). And there are, conservatively, 200 million drinking-age adults in the states. I’ve struggled to get any precise statistic on the number of transactions involving alcohol per year, but if 200 million adults drink around 200 pints of beer each (even if they’re buying packs of 16 cans), it isn’t hard to see that there will be vastly more transactions involving alcohol than the 40 million firearms sales a year.

Even if drinking alone or binge drinking is a net loss, it would be onerous to get everybody to either undergo a background check or somehow prove that they are drinking socially. For Hsiao’s argument to go through, he would have to show that the costs of drinking so outweigh the benefits of social drinking that they justify treating alcohol purchases like firearm purchases, and this needs to take account of the extra cost involved: people buy alcohol much more regularly than they buy firearms.

Background Checks for Alcohol

photograph of alcohol bottles on shelf

Many people think that firearms purchasers should be subject to background checks. Polls have consistently found that more than 80% of American voters support so-called “universal background checks” on firearms purchases. Currently, federal law in the United States requires that anyone buying a firearm from an individual or business with a Federal Firearms License undergo a background check. (This requirement does not apply to those buying firearms from private sellers.)

At the same time, individuals wishing to buy alcoholic beverages are not subject to the same requirement, nor is there much (if any) public support in implementing a background check system for alcohol. To buy alcoholic beverages, one simply needs to provide identification showing that one is at least 21 years old. There is no further requirement to prove that one can safely consume alcohol.

These policies are inconsistent. The same reasoning in favor of background checks for guns applies equally (and arguably with much greater force) to background checks for alcoholic beverages. With that point in mind, I want to defend the following conditional: if there should be background checks on the purchase of guns, then there should be background checks on the purchase of alcohol.

Someone who accepts the conditional has two options. One might embrace the antecedent (modus ponens), which leaves us with an argument for more restrictive alcohol control:

  1. If there should be background checks on the purchase of guns, then there should be background checks on the purchase of alcohol.
  2. There should be background checks on the purchase of guns.
  3. Therefore, there should be background checks on the purchase of alcohol.

Alternatively, one could deny the consequent (modus tollens) and frame it as an argument against background checks as a form of gun control:

  1. If there should be background checks on the purchase of guns, then there should be background checks on the purchase of alcohol.
  2. There should not be background checks on the purchase of alcohol.
  3. Therefore, there should not be background checks on the purchase of guns.

The option that one ends up taking will depend heavily on prior background beliefs about the nature of regulation and freedom. My goal here is not to argue for one of these options over the other. It is rather to show that these policies are connected.

Why Background Checks?

Suppose we think that there should be background checks on the purchase of firearms. What would be the rationale for this policy? The obvious answer is that firearms are capable of causing great harm when put in the wrong hands. The point of a background check is to determine whether there are factors about a buyer’s criminal history that disqualify him from owning a firearm. While background checks aren’t always effective (e.g. they won’t stop someone who has no prior history), they do act as a barrier to prohibited purchasers.

How much harm do guns actually cause? Each year, around 40,000 deaths are caused by firearms incidents — a figure that includes accidents, suicides, or crimes. Around 470,000 people are victims of crimes committed using firearms. That’s quite a large number, and so it is understandable why we might want firearms purchasers to pass a background check. While background checks won’t eliminate all of these harms, they might bring down the numbers. Moreover, in comparison to a policy such as a blanket prohibition on gun ownership, background checks attempt to strike a balance between the interests of those who want to own guns for self-protection and those who want to avoid being harmed by them.

Comparing Harms: Guns vs. Alcohol

But now consider alcohol. Each year, there are around 95,000 deaths from alcohol related causes. This number includes health-related deaths, accidental deaths, and crime-related deaths. That’s more than twice the amount of deaths from guns. Alcohol also plays a significant role in violent crime: each year, there are more than three million violent crimes in which victims perceived the offender to have been drinking at the time of the offense.

The numbers show that alcohol is involved in substantially more deaths and crimes each year than firearms, yet it is very loosely regulated compared to guns. Since reducing the numbers is what we’re concerned about, shouldn’t some of the same controls for guns also apply to alcohol? If the potential for harm is what justifies background checks for guns, then it applies with even greater force to alcohol, which is orders of magnitude more harmful than firearms.

Like with guns, background checks attempt to strike a balance between the interests of those who want to imbibe responsibility and those who want to avoid being harmed by alcohol. They are a common-sense way of reducing harm that is nowhere near as burdensome as (say) total prohibition.

One might immediately object by appealing to the distinction between self-regarding actions and other-regarding actions: many of these harms involve things people do to themselves, not other people. Guns harm mainly other people, whereas alcohol harms mainly the user.

This reply won’t work. First, as far as deaths are concerned, two-thirds of gun deaths are suicides, so it is just not true that firearms kill mainly other people. If we shift our view to crime, alcohol clearly fails the test, as alcohol-related crimes affect many times more people than firearm-related crimes. But more importantly: deaths remain bad whether they’re self-inflicted or inflicted by others. The needless death of a person does not become “acceptable” or “morally neutral” simply because it was the result of his own choices.

If our goal is simply to bring down the numbers, then it doesn’t really matter how the numbers were generated or where they came from. What matters is that each “number” represents a harm. And on that point, the death of an innocent person is always a harm regardless of how it is caused. So the distinction between “self-regarding” and “other-regarding” actions becomes irrelevant.

Indeed, if we accept the harm-based rationale for background checks, then given the sheer amount of harm attributable to alcohol, there is a good case to be made for extremely restrictive forms of alcohol control that go beyond just background checks. But we needn’t go that far — the point is that the argument for background checks on guns is weaker than the argument for background checks on alcohol. If we’re going to have background checks on anything, it should be alcohol.

Implications

While my focus has been on background checks, there is a clear parallel between gun control and alcohol control. An argument for the former would also seem to be an argument for the latter, and an argument against the latter would also seem to be an argument against the former. Proponents of gun control are left with a dilemma: either we embrace background checks for gun ownership (and thus also alcohol) or we reject background checks for alcohol (and thus also background checks for gun ownership).

There is no doubt that a proposal to implement background checks on alcohol would prove to be unpopular. Many would object to it on the grounds that it is burdensome and paternalistic. But that is the price of consistency. Perhaps the better option is to reject background checks for both alcohol and guns.

Gun Control and Constitutional Interpretation

photograph of gavel resting on Bill of Rights

Since the beginning of 2021, there have been 133 mass shootings in the United States. While some of these shootings find their roots in racism, misogyny, and xenophobia, they are also the result of the relatively easy access to firearms in the United States. Many Americans might attribute this prevalence of guns to the right guaranteed in the United States Constitution, enunciated in the Second Amendment’s phrase “the right of the people to keep and bear Arms.” However, the application of the Second Amendment as affording the individual liberty of gun ownership is a modern, highly disputed, doctrine in constitutional law. Two contemporary landmark cases, District of Columbia v Heller (2008) and McDonald v City of Chicago (2010) fundamentally altered the power of state and federal governments to regulate gun ownership by recognizing an individual right to own and keep firearms. These cases were highly divisive, included multiple dissenting opinions, and were decided by bare, 5-4 majorities. However, the majority and minority in both cases relied a type of constitutional interpretation called originalism to bolster their conclusions. The difference, however, lies in the majority’s use of original meaning and the minority’s use of original intent.

How were the different forms of originalism employed in both cases? What are the moral pitfalls of either type of originalist interpretation? And is relying on the ideas or desires of the Founders an ethical basis on which to decide cases?

In District of Columbia v Heller (2008), several individuals, including members of lobbying groups like the National Rifle Association and the Cato Institute, challenged the constitutionality of a D.C. law which imposed several restrictions on gun ownership, including the regulation that rifles and shotguns be kept “unloaded and disassembled or bound by trigger lock.” In an opinion written by Justice Antonin Scalia, the Supreme Court held that the Second Amendment granted individual citizens the right to keep and bear arms for the purpose of self-defense. Though the Court had previously defined the scope of the Second Amendment in United States v Miller (1939), the widely-accepted application of the Second Amendment in constitutional law was that the right to bear arms only applied to ownership of weapons in the context of use in an organized militia. For this reason, many decisions involving individual gun ownership in the 20th century refused to acknowledge that the Second Amendment bestowed an individual right which restricted states or the federal government from regulation.

The little room that was left open for gun regulation after District of Columbia v Heller was quickly closed two years later in McDonald v City of Chicago (2010). The majority opinion, this time penned by Justice Alito, held that Chicago’s regulation which essentially prevented firearm registration and ownership was a violation of rights bestowed to individuals by the Constitution. This case was significant because it granted individuals broad legal protection from gun regulation. Many constitutional scholars and theorists view both Heller and McDonald as landmark Supreme Court decisions which fundamentally altered the legal conception of the Second Amendment.

Originalism is a form of constitutional interpretation which understands the Constitution in terms of what it originally meant when it was written, the original intent of the Framers, or both. One consideration, which applies to both original meaning and original intent interpretation is the reliance on the ideas and intentions of people long-dead and gone when deciding what rules should govern society. Nobody alive today had a hand in writing the original Constitution. Sometimes known as the “dead hand problem,” a moral and philosophical paradox arises when considering whether one can consent to a government, they had no hand in designing.

Fundamental to the reasoning employed in both Heller and McDonald was originalist meaning. Proponents of original meaning generally argue that it ultimately benefits society by limiting the discretion given to judges. By limiting the power of judges to use their own authority to decide what the Constitution says (or should say), originalism might be said to prevent an unequal application of the law and to leave political battles to the legislature where it can be more democratically controlled.

Those critical of originalism, however, might see it as giving far too much weight to the language, culture, and politics of a long-gone society and see it as detrimentally rigid and inapplicable to a rapidly changing society. Upholding the original meaning of the Constitution might also force one to condone immoral provisions, such as those enabling slavery or only bestowing rights upon certain groups of people. While originalism might safeguard certain moral values present in the Constitution it also prevents moral correction. For example, in the case of gun reform, even if the original meaning of the Constitution was meant to bestow individual gun rights, perhaps this liberty should be reexamined in the face of advanced technology and the prevalence of gun violence.

Turning not to the original meaning but instead to the original intentions of the Framers is another strategy used in originalist constitutional interpretation. In their dissents in Heller, both Justice Stevens and Justice Breyer point to historical evidence which implies that the Second Amendment was intended only to apply to militias and was not conceived to apply to individual self-defense. Originalism which focuses on the intentions of the Framers in terms of gun rights has also been a popular method among gun reform advocates, and late night comedy hosts, who point out that firearm capabilities at the time of ratification were vastly different than firearm capabilities today. While many gun regulation advocates might agree with the application of the Framers’ intention in this instance, the pitfall of applying such an interpretive strategy includes reckoning with some of the potentially immoral intentions present in certain provisions of the Constitution. Article I, Section 9 of the Constitution condoned slavery, and experts have contended that the Framers did not intend for certain Constitutional rights, like the right to vote, to extend to poor men, women, or BIPOC folks.

Another potential problem with considering the intention is that the Founders were arguably themselves immoral. More than a few of the Founders owned slaves, and though some expressed moral grief over this fact, their decision to subjugate human beings is entirely reprehensible. Even relativist arguments which defend the Founders and advocate for original intent, might fail on the basis that the point is exactly that we have changed as a society and should not be turning to the dead for guidance in solving society’s most pressing legal problems.

Since Heller, the rate of gun deaths in the United States have increased 17%. The United States is the one of the leading countries in the world when it comes to firearms death, and there is a clear political, cultural, and moral interest in reexamining the individual right to gun ownership. If one’s goal is to regulate firearms, the most effective form of constitutional interpretation to do so might very well lie outside of originalism altogether. However, it is important to recognize how originalist application has greatly influenced gun control in the United States. By understanding the moral quandaries that belie the forms of modern constitutional interpretation applied to firearms cases, we can better understand which types of arguments best support the gun regulation we seek.

Debating the Permissibility of Printable Guns

Photograph of a 3D printer with a person's hand on a computer mouse nearby

In 2013, Cody Wilson, a self-described anarchist, made headlines when he posted plans for a 3D printable pistol called “The Liberator” online.  The state department intervened and shut down the site, but not before the plans for the weapon were downloaded over a million times.  Wilson promptly sued the government. This week, the government reached a settlement with Wilson.  The settlement is quite favorable to Wilson and other gun rights advocates—it allows Wilson and others to proceed with their mission to post the instructions online. Continue reading “Debating the Permissibility of Printable Guns”