I suspect that the vast majority of our American members must at least be aware of the Kyle Rittenhouse trial, even if they haven’t been following it closely. Many people (members of M1911.org and otherwise) who are vitally concerned with the right to keep and bear arms watched it closely. From comments I have seen on other sites, there seems to be considerable confusion as to why the sixth charge -- unlawful possession -- was dropped just before the end of the trial. This is my non-lawyer attempt to unmuddy the waters just a bit.
Ultimately, it comes down to the fact that the prosecution apparently didn’t bother to read the law under which they brought that charge. Or, perhaps more accurately, I’m going to guess that they only read it as far as they wanted, and overlooked the rest of the law. For the rest of us, I think it offers a great example of just why it is important to read and understand the laws that apply to whatever it is you’re doing (or going to do.
Let’s start with the law. The basic statute, on which the charge was based, is Section 948.60 of the Wisconsin statutes. https://docs.legis.wisconsin.gov/sta...tatutes/948.60. The title of the section is “Possession of a dangerous weapon by a person under 18.” Subsection (1) defines what constitutes a “dangerous weapon” for the purposes of this section of the statutes.
Subsection (2)(a) then establishes the crime:
I think the prosecution stopped reading right there. They said “GOTCHA!” and filed the charge. Unfortunately for the prosecution, it’s not as cut-and-dried as they thought, and Rittenhouse’s attorneys (fortunately for Rittenhouse) did take the time to actually read and understand the totality of the law. Here’s what the prosecution missed: There are three subsections in the law, and subsection (3) has three sub-subsections. The sub-subsection we’re interested in is sub-subsection (3)(c), and specifically only the first sentence thereof:(a) Any person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor.
The plot thickens. Rittenhouse was 17 years old at the time of the incident. Superficially it looks like a prima facie case of a violation ... until we read down to sub-subsection (3)(c). When we read that, we find that this entire section of the statutes applies to a 17-year old ONLY if he is in violation of section 941.28 of the statutes, or he is in violation of BOTH section 29.304 AND 29.593.(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.
So, before we can determine that Rittenhouse’s possession of the rifle was unlawful, we have to look at those sections of the statutes.
Section 941.28 says the following:
https://docs.legis.wisconsin.gov/sta...tes/941/iii/28941.28 Possession of short-barreled shotgun or short-barreled rifle.
(1) In this section:
(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.
(4) This section does not apply to the sale, purchase, possession, use or transportation of a short-barreled shotgun or short-barreled rifle to or by any armed forces or national guard personnel in line of duty, any peace officer of the United States or of any political subdivision of the United States or any person who has complied with the licensing and registration requirements under 26 USC 5801 to 5872. This section does not apply to the manufacture of short-barreled shotguns or short-barreled rifles for any person or group authorized to possess these weapons. The restriction on transportation contained in this section does not apply to common carriers. This section shall not apply to any firearm that may be lawfully possessed under federal law, or any firearm that could have been lawfully registered at the time of the enactment of the national firearms act of 1968.
(5) Any firearm seized under this section is subject to s. 968.20 (3) and is presumed to be contraband.
Subsection (1) is the definitions, and the definitions include both “Rifle” and “Short-barreled rifle.” The operative part of this law is subsection (2), which says, “No person may sell or offer to sell, transport, purchase, possess or go armed with a short-barreled shotgun or short-barreled rifle.”
Well, that’s interesting. In order for Rittenhouse to have been guilty under section 948.60, he would have had to be in violation of this section -- and to be in violation of this section he would have had to be carrying a short-barreled rifle. When pressed, the prosecution had to admit that the rifle Rittenhouse carried and used was not a “short-barreled” rifle.
But we also have to look at sections 29.304 and 29.593 -- and we have to look at them together, because the base law is violated only if someone violates both of these sections. However, both 29.304 are hunting statutes, so they don’t apply in this case.
https://docs.legis.wisconsin.gov/sta...utes/29/iv/304
https://docs.legis.wisconsin.gov/sta...es/29/viii/593
And that’s how the judge determined that the possession of a dangerous weapon by a person under 18 charge did not apply to Mr. Rittenhouse.
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