Monday, September 07, 2020

Kenosha, Kyle Rittenhouse: Are People under the age of 18 Forbidden from Open Carry of Rifles in Wisconsin?

 


Image from facebook, page taken down. Cropped, scaled, and green text added by Dean Weingarten.

One of the questions involving the Kyle Rittenhouse defensive engagements in Kenosha, Wisconsin, just before midnight on the 25th of August, 2020, is if Kyle was forbiden from carrying an AR15 rifle, because Kyle was, at that time, four months short of his 18th birthday. 

Writing about it, I mentioned Wisconsin statutes 948.60, which forbids the carry of dangerous weapons by people under the age of 18. The law has exceptions and cutouts and definitions which need to be taken into account. 

There is an excellent tactical and legal analysis of the two defensive engagements by Kyle Rittenhouse at the ar15.com forum. In that analysis, the author explains that Wisconsin does not have a general prohibition on people carrying dangerous weapons if they are under 18, but does prohibit people under 16 from carrying dangerous weapons, again, with exceptions.

The explanation of the law at ar15.com is very good. However, I thought it could profitably be elaborated for those who do not read the law extensively. 

Wisconsin Statute 948.60 regulates the possession of a dangerous weapon by persons under 18 years old. In paragraph (2) (a) it states:

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

Paragraph (3) lists exceptions. (3)(c) excludes most people who are under 18, except those in violation of 941.28 or 29.304 and 29.539. 

(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.

Statute 948.60 only applies to a person under the age of 18 who are in violation of 941.28 or not in compliance with 29.304 and 29.593.

What does it take to be in violation of 941.28? Here is the statute:

 (2)No person may sell or offer to sell, transport, purchase, possess or go armed with a short-barreled shotgun or short-barreled rifle.
In the statute, short-barreled shotguns or short-barreled rifles are those which require a special license under the National Firearms Act. In general, those are rifles with a barrel less than 16 inches in length or shotguns with a barrel less than 18 inches in length, or which have an over all length less than 26 inches. 

The rifle carried by Kyle Rittenhouse, as an ordinary AR15 type, does not fall into those categories, so Kyle was not violating 941.28.

Was Kyle in violation of Wisconsin statute 29.304 and statute 29.539? These statutes deal with hunting regulation and with people under the age of 16 carrying rifles and shotguns. First, statute 29.304:

29.304  Restrictions on hunting and use of firearms by persons under 16 years of age.

(b) Restrictions on possession or control of a firearm. No person 14 years of age or older but under 16 years of age may have in his or her possession or control any firearm unless he or she:

Kyle is reported to be over 16 years old, so he was not violating statute 29.304.

How about statute 29.539?

29.593  Requirement for certificate of accomplishment to obtain hunting approval.

Kyle was not hunting, so statute 29.539 does not apply.

To sum up: Wisconsin statutes 948.60 only forbids people under the age of 18 from possessing or carrying dangerous weapons in very limited cases. If a person is 16 years of age or older, the statute only applies to rifles and shotguns which are covered under the National Firearms Act as short barreled rifles or shotguns. People who are hunting have to comply with the hunting regulations, and there are general restrictions for people under the age of 16.

While a casual reading of Wisconsin Statutes seems to indicate people under the age of 18 are forbidden from carrying rifles or shotguns, that is not the case under Wisconsin law, in general. 

The general prohibition is for those under the age of 16.  

Kyle is reported to be more than 17 years old. 

This is consistent with Wisconsin's Constitutional protection of the right to keep and bear arms, section 25. Wisconsin added the clear wording of Section 25 to the Wisconsin Constitution in 1998.  

https://ballotpedia.org/Article_I,_Wisconsin_Constitution

Text of Section 25:

Right to Keep and Bear Arms

The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.[1]

Kyle was legally able to exercise his right to keep and bear arms for security and defense, as protected by the Wisconsin Constitution, in Kenosha, Wisconsin. He was not forbidden by Wisconsin law from possessing or carrying a rifle because he was less than 18 years of age.

The law is clear, if a bit convoluted. Lawyers are supposed to be experts at unwinding the convolutions of the law.

Kyle's defense team is correct. The criminal complaint against Kyle appears to have been rushed and ill conceived.


©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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