One item is really on the list of charges against Kyle Rittenhouse, the 17-year-old from Illinois who was arrested after two people were shot dead during protests against police shooting of Jacob Blake in Kenosha, Wisconsin.
In addition to five offenses, which include reckless first degree murder and premeditated first degree murder, Rittenhouse has also been charged with a sixth crime: possession of a dangerous weapon by a person under the age of 18. And this will lead to an interesting defense by his lawyer – one who is unlikely to be successful.
Therefore, it is argued, Wisconsin law unconstitutionally restricts possession of Second Amendment-protected firearms. Pierce will likely add that the American colonies expected and sometimes require citizens under the age of 18 to have and carry guns.
That will be a range for several reasons. In the 2008 District of Columbia v Heller case, Judge Antonin Scalia stated specifically: “Like most rights, the right guaranteed by the second amendment is not unlimited.” By the 19th century, “commentators and courts routinely declared that the right was not a right to keep and carry weapons in any way or for any purpose,” he added.
Scalia’s statement provided examples of valid “longstanding bans on the possession of firearms by criminals and the mentally ill, or laws prohibiting the carrying of firearms in sensitive locations such as schools and government buildings, or laws imposing conditions and qualifications for the commercial sale of firearms listed weapons. “
Underage possession of firearms was not specifically mentioned on that list, but the court added that this “list is not purported to be exhaustive”.
In other gun rights cases, since the Supreme Court ruled Heller, federal courts have ruled that modern “under 21” restrictions on handgun purchase are “historically ingrained” and that the “right to keep guns in its inception , does not extend to teenagers. “
It is true that many colonies permitted, and sometimes ordered, the possession of firearms by minors for the purposes of militia service. However, the Illinois Supreme Court put it this way: “At no point in the history of this nation has there been a right for minors to own and possess firearms.”
Even if the writers and colonists approved the compulsory possession of firearms by juveniles, it does not imply an immutable right to own or possess them. According to the courts and the constitution, young people like Rittenhouse appear to have fewer rights to carry assault rifles than adults.
Danny Cevallos is a legal analyst for MSNBC. Follow @CevallosLaw on Twitter.