Just because you ‘say’ it is “Common Sense” …

Projection and omission do not make for good policy logic.

I saw this headline a couple days ago, published Sep 19th. Noah Feldman is a professor of law at Harvard and worked as a Supreme Court Clerk. It is therefore baffling to me that he wrote this piece of pseudo-logic… in the name of Common Sense…

Opinion/Feldman: How guns twist the logic of self-defense laws

It certainly grabbed my attention, and thus my valuable *click* through, and I’ll admit it was worth the read. It just wasn’t worth the read for the reason they probably hoped it would be. It’s a Bloomberg Opinion so you can take that for what it is worth, however a reasoned opinion is always worth hearing out. It, at the very least, can give you points for them and they for you to consider that may have been missed in our otherwise rather insular information streams.

I see no such thing here to be honest, just weak narrow logic backed by poor projection hypothetical interpretations what we know… But I suppose that is also just my opinion.

Mr. Feldman opens…

You’d think it would be easy to determine whether Kyle Rittenhouse can successfully plead self-defense after killing two people and injuring a third during protests in Kenosha, Wisconsin. Turns out that it’s actually pretty complex. Here’s why: When gun rights get involved, the law tends to depart radically from common sense.

“…depart radically from common sense.” According to who, Mr. Feldman? You? Alright then. According to your subjective opinion on what is ‘common sense’ under Use of Force laws nationally and in Wisconsin you think things get wonky when firearms get involved.

I tend to agree, but probably for vastly differing reasons. Mr. Feldman is in a position to offer what should be a well reasoned opinion, but so am I.

Shall we continue?

The legal framework on its own is relatively straightforward. In Wisconsin, as in many other states, you can use deadly force in self-defense if you reasonably believe it’s necessary to prevent imminent death or great bodily harm to yourself or others. You can’t avail yourself of the self-defense argument if you’ve provoked other people into attacking you.

Ah, I see where we are going here. What is ‘Provocation’ legally speaking? In many locales there is legal framework in place surrounding ‘Mutual Combat’ situations. In other words, two or more people decide to fight, usually at a less than lethal level. This may or may not still be illegal or a civil citation of some sort, however self defense at less than lethal or lethal levels is not in play in the normal applications since both/all parties are willing participants in the combat. This remains true if someone ‘provokes’ the fight deliberately to get an escalated response from the other party. This is still a variant of ‘Mutual Combat’ by actively picking a fight.

If you wander the streets with a shirt that states, “Kick me in the junk!” and someone takes you up on that advertisement. You are not, legally speaking, in a great position to retaliate with any kind of force.

If one party escalates the mutual combat to lethal, the other(s) are now in a lawful position for lethal force level self defense. This is by no means a ‘good’ place to be, but it is supported by law and logic. A situation doesn’t become self defense on the sole circumstance that you are losing a brawl, but if a non-lethal mutual combat situations becomes lethal due to the actions of the opposing individual or group you are within your rights to act effectively to protect yourself from the non-agreed upon escalation of the fight.

To use the example above, if you are wearing the “Kick me in the junk!” shirt and someone instead tried to stab you or shoot you in the junk instead (or anywhere else), you would have the case for self defense. On the flip side, if you who just got kicked in the junk at advertorial clothing request tried to stab or shoot or otherwise kill the person who obliged your request they would have the case for self defense against you.

But let us return to Feldman’s interpretation of provocation and self defense laws.

Some states have a rule that says before you use lethal force in your own defense, you have a “duty to retreat” – in other words, you have to try to run away before killing your assailant.

Technically, not kill your assailant. Before using force that could reasonably kill your assailant to make them stop, not just killing them.

Wisconsin does not impose this duty. The jury is, however, allowed to consider whether it was possible for you to run away as part of its determination of whether you acted reasonably.

Yes, some states not relevant to the Rittenhouse case do have ‘Duty to Retreat’ on their books. It is a stupid law that disregards the possibility that retreat is not reasonably possible. States that cling to these laws as some manner of higher virtue than their peers are out of touch with grim reality, in my opinion.

Yes, a jury is allowed to consider whether or not your actions were reasonable under the circumstances of the use of force. This analysis does include whether you had other reasonable and at hand methods to remove yourself from the situation. [IE: Did you get out of your vehicle and shoot the man coming at you with the shovel to hit you while he was still 20 yards away and you had freedom of movement in and with your vehicle?] But, it does not mandate any be tried suicidally prior to using a more effective but perhaps more socially ‘distasteful’ option, like shooting your assailant(s). [You are trapped in a hallway or alley with no way past your assailants who are armed and dangerous and getting closer, but the law would require you to try and get by them before using your weapon.] Some states have this duty to retreat in public, but not at home. This is where ‘Castle Doctrine’ comes from, no duty to retreat from your ‘castle’, your home.

I find it curious that Feldman brings up ‘Duty to Retreat’ and that Wisconsin does not require it.. when every video of Rittenhouse shows him… retreating.. when he is assailed.

Now, how the Rittenhouse case falls is going to come down to whether or not the courts are going to excuse the circumstance that he was an armed minor, at least to a degree subservient to self defense laws. Will being ‘unlawfully armed’ invalidate what appears to be lawful use of force if Rittenhouse was 18 and are there circumstances unknown that support the argument that the Rosenbaum shoot was unjustified?

It comes down to what the ‘order of legal operations’ is for lack of a better term off hand.

Just as with mathematics, laws may need to be applied in a certain order and used or waived for the specific circumstances of a case. Under cases of lawful self defense, otherwise criminal liabilities are often waived and made inapplicable. Discharge of a Firearm within City Limits, Discharge of a Firearm inside a Building, Discharging a Firearm with Intent to Harm Person or Property, Menacing Another Person with a Firearm, Discharge of a Firearm Causing Injury or Death, a variant of these laws is on every legal registry. The intent of these laws is to punish and deter both criminal mischief and negligence that do not reach the legal intensity of homicide or aggravated assault.

The violation of these laws is waived in cases of lawful self defense. The lawful defendant cannot be prosecuted under them if a jury finds that their actions were reasonable. Civil liability is a different arena, but criminally no laws were broken if the use of force is determined to be reasonable. Most states have legal language along these lines.

The question now becomes, did Kyle act reasonably in the circumstances where he fired on the men who chased and attacked him directly? In another context, would Rittenhouse have been justified in using lethal force of a variety other than a firearm to protect himself from the older, likely stronger, pursuing convict(s) and the surrounding crowd?

Secondly, does that reasonable use of force waive other criminal liabilities, to include being armed with a rifle, outside his home state, at 17 years of age? These are the two ultimate legal questions and their answers and what order those answers are applied matter greatly.

Back to Feldman.

The trouble begins when you start applying the legal rules to someone in Rittenhouse’s situation, namely, someone who has carried an AR-15-style weapon to what is intended to be a peaceful protest. In a commonsense universe, this act itself would appear to be a provocation.

In a common sense universe ‘Peaceful Protests’ wouldn’t look like this either…

So perhaps we stop pretending that there isn’t precedent to be armed in the vicinity of a riot? ‘Intended to be peaceful’ but wasn’t is about as useful as WWI ‘intending’ to be the war that ended all wars and ‘intended’ to be done by Christmas 1914. Stop confusing your opinion on justifiable violence for the ‘common sense’ one and/or the only one. It isn’t the only one. In fact it isn’t firmly enough grounded in reality to be ‘common sense’, in my opinion.

It appears Feldman is trying to intimate that the very act of carrying or wearing a firearm is provocation because the protest was intended to be peaceful. Sir, I kindly submit that I do not wear a seat belt because I am supposed to crash (anymore than I do it because ‘it is the law’) but instead because the experience of flying through my windshield in the event of a crash is not high on my list of must experience experiences.

Yet under Wisconsin law, adults are entitled to carry around their licensed firearms in public places. An open-carry law means that prosecutors would have a tough time convincing a jury that simply carrying an assault rifle counts as a provocation.

We’ll gloss over his inaccurate use of assault rifle, a technical term with a solid definition, and address ‘Provocation’. Was Kyle wearing the, “Kick me in the junk!” shirt by carrying a rifle?


‘If he wasn’t there for a fight, why did he have the rifle?’ or, put another way, ‘If she didn’t want the attention, why is she dressed like that?’ Your argument is that Kyle Rittenhouse was provocatively dressed? But because it is legal to be dressed like Rittenhouse was, as an adult, it would be tough to convince a jury there was provocation.

True, Rittenhouse was only 17, and the law bars minors from gun possession. But there is no reliable way that bystanders could have known that Rittenhouse was underage just by looking at him. Provocation is in the eye of the beholder, and the beholders would have had no way of knowing that Rittenhouse was engaged in an illegal act (because of his age) rather than a protected act (which it would have been had he been a year older).

Yep, that is absolutely the argument here… Rittenhouse dressed provocatively… Wow… Didn’t act provocatively, wasn’t shouting, “Come at me, Bruh!” or “Shoot me, N****” (Which Rosenbaum absolutely did shout, on video, but we’ll give him the benefit of the soft A)

Common sense is even further displaced when you start to think about how Rittenhouse would claim to have reasonably considered himself to be in danger of imminent death or bodily harm.

Oh, I’m curious to see this leap in logic, Mr. Feldman.

The criminal complaint against Rittenhouse says that Joseph Rosenbaum, his first victim, approached Rittenhouse and then followed him. Cellphone video shows Rosenbaum – who doesn’t look like he’s got a gun – throwing a plastic bag at Rittenhouse and missing. Rittenhouse then allegedly shot Rosenbaum four or five times, killing him.

Actually this makes the circumstance that he was chased and corned by a convicted pedophile before shooting even more #MeToo than it was since we’re saying he dressed provocatively… Oh boy. See? See that, Feldman? How you picked a good guy/bad guy by calling Rosenbaum (pedophile, CSC with a minor, raped 5 boys ages 9 to 11) the first victim? And then I did the same thing by factually calling Rosenbaum a pedophile? I can steer an opinion piece too, man. I’m just not casually omitting things, like using the ‘technically’ accurate term followed when a far more accurately descriptive term, chased, would be more apt.

Ordinarily, being followed or having a plastic bag thrown at you would not be enough evidence to show that you were in reasonable fear of your life. If someone threw a plastic bag at you, and you responded by killing that person with your bare hands, you would most likely go to jail for murder.

Unless that pedophile.. sorry, person was also trying to murder you with their bare hands and had chased you down to put their hands on you.

Cornered by a man, older and possibly stronger than Rittenhouse, who chased him into that corner by the cars, limiting/eliminating the directions Rittenhouse could continue to ‘retreat‘? How about that Rosenbaum tossed a heavier object in a bag (understood to be a water bottle at this time. The clearly heavy object arc made many suspect it was a Molotov, including me, as the light made the surrounding bag resemble flame) and not just a bag (brilliant omission, Feldman) at Rittenhouse hoping to trip him and/or cause concussive/impact injury allowing Rosenbaum to stop Rittenhouse from retreating‘?

You know retreating, right Mr. Feldman? That action you intimated should be a requirement before using lethal force against someone, running away from someone threatening you?

I am highly aware that language paints a picture, and the term ‘followed’ brings to mind a slow walk (007/Mission Impossible style) where one person is cautiously following another with discretion, they aren’t trying to catch them but just keep them in sight. Not the foot pursuit that Rosenbaum was after Rittenhouse with. That, dear readers, is a chase.

But reading Mr. Feldman’s paragraph you would think Rosenbaum was simply walking behind Rittenhouse, maybe using some foul and colorful language (we certainly know Rosenbaum did earlier), and then tossed a plastic bag (and certainly nothing else of more, perhaps dangerous, size) at Kyle when Kyle turned 180 degrees and shot Rosenbaum for no reason and certainly not having been caught up to and cornered around cars. You wouldn’t receive the context that this was all done at a run or that there was a gunshot that preceded Kyle’s in the immediate vicinity that Kyle may have assumed was from Rosenbaum. You get none of the context that Rittenhouse was running away, with Rosenbaum in a closing pursuit.

We are purposefully left with the impression that only Kyle Rittenhouse was shooting (despite numerous gunshots heard on video clearly not coming from Rittenhouse) and must therefore draw the ‘common sense’ conclusion that he is in the wrong and murdered two men (violent felons) who were just (maybe.. possibly.. Feldman hopes so) trying to disarm him and tell him to scamper home.

That crowd would absolutely never have beaten Rittenhouse to death or shot him with the AR they tried taking after, “Get his ass.” was shouted during the pursuit down the street. The man who came up to kick Rittenhouse after he had tripped and fallen while continuing to retreat (oh look, that word again) was using ‘common sense’, right?

Because ‘common sense’ says that Rittenhouse was in the wrong. That was what was happening, as written here, and no other possibility could be seen as a reasonable observation of the circumstances. Rosenbaum was only chasing.. I’m sorry “following” Kyle because he dressed provocatively, right? And that was okay, Kyle should have just let it happen. You know, just try and enjoy his first close combat experience with a man who raped five kids.

A gun twists that logic. Rittenhouse can and presumably will claim that he feared Rosenbaum would take his gun away from him and shoot him with it.

Among other things an angry man could do to a 17 year old, with supporters around…

In other words, the presence of Rittenhouse’s own weapon gives Rittenhouse the opportunity to claim that he was in fear of bodily harm.

Is that not a valid argument? Has that circumstance not happened? Are we really resting this assumption of reasonable harm on claiming that Rosenbaum stealing the rifle from Rittenhouse and then turning it on him is an absurd notion by claiming that it was Rittenhouse’s fault for wearing it.

It seems little short of absurd that a person who carries a gun in public and is then pursued could use the fact that he and not his victim was armed to claim that he had to shoot in self-defense.

So carrying a firearm is an open invitation to be assaulted and harassed so long as the person pursuing the armed individual does not have a firearm? I’m no fan of open carry but I just find most practitioners of art annoying and underwhelmingly informed on many issues. I don’t think they should be chased, harassed, and assaulted.

Also, please reference every instance of a police officer being killed with their own firearm. Additionally reference the spurious argument that people, especially women, should not carry a firearm because it will be taken from them and used against them. And now tell me again how having your firearm stolen and used against you is just crazy talk.

And maybe a jury wouldn’t buy it. But it is not unlikely that a judge would allow him to advance the argument. Again, the existence of laws that allow open carry is distorting ordinary logic.

Because it is a valid and proven event that has happened on multiple occasions, it isn’t a hypothetical… Ladies and gentlemen please refrain from taking any action against the hijackers of your plane since, although evidence suggests that you could all be turned into a hostage filled missile, killing hundreds of more people and yourselves, it might turn out alright instead.

Since when is citing real world examples of similar circumstances “distorting ordinary logic?”

The second victim, Anthony Huber, allegedly tried to grab Rittenhouse’s gun. He, too, was unarmed. Some accounts suggest that he may have hit Rittenhouse with a skateboard.

Accounts like video evidence?

Of course by now, Rittenhouse had shot and killed Rosenbaum. That could possibly be depicted as an act of provocation, so that Rittenhouse cannot claim self-defense in his shooting of Huber.

Only if the Rosenbaum shooting was provably not self defense and Huber was a direct witness, otherwise Huber has no basis to be lawfully provoked. ‘Common sense’ would also dictate that perhaps chasing a young man who is armed with a rifle, who you believe to have already killed someone (unlawfully or not) is a stupid idea.

But Huber was a repeat domestic abuser so hands on could be safely assumed to be his thing. Plus he was part of a crowd “following” Rittenhouse who was retreating or, um.. who was murderously running away from people striking him since they were walking in the same direction… until he tripped and fell.

In a sensible world, the fact that Huber may have tried to disarm Rittenhouse, who had just shot Rosenbaum, would turn Huber into a martyred hero – not someone who posed a lethal threat to the shooter.

In a sensible world, you Mr. Feldman, would realize that even if Huber was the saintly martyr you are pretending he is he would still, without a doubt, pose a lethal threat to Rittenhouse if he acquired Rittenhouse’s rifle. That is an indisputable fact of having taken a weapon from someone, you are now the lethal threat and that deters them (the threat formerly known as lethal) from rash injurious actions (you hope, perhaps). The question is which of them was ‘in the right?’ And, mind-blowing as this may come to you, it is possible for both of them to use force lawfully under the correct observed circumstance from their perspective.

The evidence pile is stacked heavily in the favor of Rittenhouse, however, from the observable point where he was first pursued by Rosenbaum. The lawful use of lethal force has no provision, nor should it, that requires equal armature. Just a reasonable belief your life or someone else’s is in imminent danger. Surrounded by an angry crowd that swarms upon you when they make you trip and fall perhaps?

Yes, Rittenhouse could lawfully defend himself from Rosenbaum which could trigger a potentially lawful defensive engagement of Rittenhouse by others, like Huber, under the circumstances that nobody saw Rosenbaum corner and attack Rittenhouse. It’s the whole concealed carrier takes out another concealed carrier during a shooting situation, where by the letter of legal standards no law was broken but in a practical sense something went very wrong.

In a ‘Sensible World’ a crowd would not harass and pursuit an armed individual who is not actively shooting until such time as that individual begins to actively and indiscriminately shoot again. Then they, the people immediately around the individual, would have irrefutable justification for using force against this armed individual. Not the subjective secondhand hearsay shouted in the middle of the night while gunshots ring out the in vicinity that are clearly not the individual. But, again, that would be sensible.

The logic that turns an unarmed skateboarder into someone whom Rittenhouse could shoot in self-defense again hinges on the presence of the shooter’s own gun.

No it doesn’t. The presence of multiple people attacking Rittenhouse and that Huber was the second assailant to attack while Rittenhouse was on the ground was easily enough. Having Huber armed with the improvised blunt weapon, the skateboard, which he had already thrown and missed with once (on camera), just lends credence to the self defense argument by Rittenhouse because Huber was actively using the skateboard as a weapon. Again, proportional armament is not a legal or practical necessity for a valid self defense argument. Articulating that a reasonable lethal threat using any armament, conventional or otherwise, was present and in use is the argument on which self defense hinges.

A jury could be convinced that Rittenhouse was acting in self-defense when he shot Huber, again because he was afraid that Huber might take his gun and shoot him.

Or maybe that Rittenhouse acted in self defense when he was struck, fell, and then was assailed by multiple people. If no one had ever been bludgeoned to death or severe injury by an angry mob, but especially not recently and reported on the news, Feldman’s argument might carry some water. But since Mr. Feldman is one tracking on the ‘It’s all about the gun making self defense laws weird‘ train of thought, all else has been excluded (in his mind it seems) from the realm of possibility.

Feldman’s ‘common sense’ belays all other reasonable possibilities except the specific hypothetical circumstances he is espousing. It is weak reasoning the relies on the pure self assurance that he is simply right because.

Finally, Rittenhouse shot and injured Gaige Grosskreutz, who approached Rittenhouse while armed with a handgun.

Yes, Grosskreutz (who has been reported as a felon but also claimed a Wisconsin CCW) approached Rittenhouse ‘hands up’ in a ‘non-threat’ pose and then attempted to quick draw on him when Rittenhouse moved the muzzle of the rifle away to other potential threats, going from non-threat to imminent threat. He was then ‘disarmed’.

This is the only one of the three shootings that should even conceivably be considered as potential self-defense, because Grosskreutz was armed.

I need you to stop spreading your lack-luster knowledge of what constitutes a deadly threat Mr. Feldman… Yes, a firearm or what could be reasonably perceived to be a firearm being used is legally defined as lethal force, but it isn’t the only thing.

In a ‘Sensible World’ anything that can be used to kill or grievously injure you and that you reasonably believe is being used as such, to include provably lethal implements like fists and feet which kill more people than rifles, would be considered lethal force too… that would, after all, be ‘common sense.’

But if Grosskreutz believed that Rittenhouse was a shooter on a spree – because Rittenhouse had just killed two men

Is two violent felons a spree? Anyway, both were in the process of attacking him in close quarters after pursuing him, verified on video.

– then it also defies common sense to think that Rittenhouse was entitled to shoot him in self-defense just because Grosskreutz was armed.

Why? It doesn’t defy common sense in the least. You have a rifle and a man is drawing a handgun to probably kill you… you shoot the man with the handgun as he is your 4th close assailant tonight and the most potentially lethal. This man also bluffed that we was unarmed to get close to you and then shoot you. Where is the lack of common sense in these actions? Logical threat -> Logical reaction, just because it doesn’t fit your personal subjective narrative about use of force doesn’t make it illogical. Rittenhouse entitled to shoot Grosskreutz… what a stupid word to use, why not just say privileged and get it all out in the open.

What about Grosskreutz’s right to self-defense?

He has it, as natural a right as Rittenhouse. Grosskreutz just lost… He might go away for attempted murder thanks to his idiotic friend, too. So he has that going for him.

Jacob Marshall since deleted these posts.

It is also arguable he gave it up.

Grosskreutz’s justifiable use of force is highly debatable since he was arguably part of the aggressor element. The aggressor has no right of self defense, they forfeit it, Grosskreutz was the third assailant on a man who hadn’t been shooting or even raising the rifle at the crowd until he was knocked down and then attacked on the ground. Even suppose Rittenhouse is shown as unjustified in the Rosenbaum shoot, the follow on event may show Grosskreutz as justified as well. He still lost the gunfight. Grosskreutz being potentially justified does not mean that Rittenhouse wasn’t equally justified and in fear for his life.

Rittenhouse showed a level of discipline that we’ve seen sworn law enforcement fall short of, at least within the span of the event itself. Isolated from any legality surrounding his being armed in Kenosha or his presence at all.

The supposition that Rittenhouse was viewed as an ‘Active Killer’ in the vein of Nidal Hasan, Stephan Paddock, or Brenton Tarrant is patently absurd. A spree killer who would wait until engaged in a physical confrontation for their weapon or a weapon was drawn on them before shooting just that identifiable individual who is in combat against them.

If Grosskreutz had really believed that Rittenhouse had started a killing spree, he acted in arguably the stupidest manner possible. If, however, Grosskreutz had observed that Rittenhouse had only fired at people who had attacked him closely, directly, and that he could identify as a threat, Grosskreutz’s actions make more sense. Especially if his intent was to deceive and then kill Rittenhouse. Perhaps it was deceive and detain but the deleted post from Jacob Marshall doesn’t make me feel confident in that line of reasoning.

In short, if Grosskreutz had a legal right to lethal force self defense against Rittenhouse, and that is a big IF, he lost. But he is alive anyway.

This whole situation, the legal quandary in play, is going to be determined by the specific decided legality of the Rosenbaum shoot and the details therein of why the decision was made. It has the potential to redefine and either clarify or obfuscate what self defense is under the law, who can use it, and under what circumstance. We have precedent in place for minors using firearms in lawful defense, usually their parent’s and usually at home.

The gun doesn’t make this complicated. The rifle is simple, its use is lethal force. Period. End of story. What makes this complicated is Rittenhouse’s age and him having stepped outside the legal precedents of the modern era, where 18 is one of the magic responsibility numbers.

The upshot is that Rittenhouse’s self-defense arguments may well go to a jury; and it’s not at all impossible that a jury might acquit him, except on the illegal underage possession of firearms charge. If that happens, the law on the books will have more or less been followed. But the gravitational pull of the right to bear arms will have made a mockery of our aspiration for the laws to make common sense. When there are guns involved, common sense goes out the window.

I still fail to see where any of the seen events don’t make sense, Mr. Feldman. We may not like them. We may have our opinions on the righteous, moral, or ethical validity of those involved in these events. But they make perfect sense. This was combat, it was survival. It was the hyena-like predatory nature of the mob wanting retaliation (while not wanting to get hurt further) vs the individual who sees that the mob wants blood.

The right to bear arms didn’t make mockery of anything. You made mockery of reasoning, Mr. Feldman, but the right to bear arms worked just as intended. It just so happens that fighting for your life is dirty, confusing, and then everyone has an opinion…

People are assholes like that.

Keith Finch
Keith is the former Editor-in-Chief of GAT Marketing Agency, Inc. He got told there was a mountain of other things that needed doing, so he does those now and writes here when he can. editor@gatdaily.com A USMC Infantry Veteran and Small Arms and Artillery Technician, Keith covers the evolving training and technology from across the shooting industry. Teaching since 2009, he covers local concealed carry courses, intermediate and advanced rifle courses, handgun, red dot handgun, bullpups, AKs, and home defense courses for civilians, military client requests, and law enforcement client requests.