Tuesday, November 16, 2021

The Kenosha Trial


I watched the Rittenhouse trial closing arguments on 11/15/2021.  Let me preface these remarks by saying that this post is not a commentary on the guilt or innocence of the defendant.  It is not a commentary on his behavior, speech, or mental status.  It has absolutely nothing to do with psychiatric evaluation or treatment. This post is all about common sense and how that has been suspended in the United States - especially over the past 10-20 years.

This post is about open carry laws in the United States. Open carry laws make it possible for people to carry firearms publicly without risk of arrest or search for merely having possession of those firearms. The original intent of these laws was to reduce the risk to hunters and target shooters when they were transporting their firearms home.  There are still regulations in many states about how those firearms need to be transported but the original open carry laws were to make sure that there was not a problem carrying the firearms to the home where they would be stored.

Over the past 10 years, we have seen a striking change in how firearms are carried in public and it is the direct result of these open carry laws. The most striking change has been the appearance of heavily armed men open carrying military style semi-automatic rifles and handguns. They were also often wearing bullet proof vests, body armor, and helmets. In some cases, they were also disguised so that their facial appearance was obscured.  Some of these groups were self-identified as militias or paramilitary groups.  Militias always have a sacred role in firearm debates in the United States because when the Second Amendment was written and approved 230 years ago – this was the wording:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The Second Amendment is interpreted unambiguously by gun advocates as a Constitutional right to own firearms and the most open interpretation is firearms of any kind and as many firearms as a person wants.  The sheer number of firearms possessed by Americans is a matter of public record available in many places so I do not plan to repeat it here. Record gun violence in the United States is also a matter of public record due to suicides, homicides, and accidental deaths.  The United States also has record number of mass shootings each year that can also be found in the public record and I will not repeat it here.   

For now, I want to briefly focus on the concept of militia and the idea that it is well regulated.  Militias are defined as able bodied residents between the ages of 17 and 45 years old who can be called to defend a specific state or the United States.  Private militias acting outside of the federal code definition are illegal.  That includes all groups who are not called to duty by a state governor or the federal authorities.  Even if these groups appear to be uniformed and operating under some command structure, they are illegal organizations.  All 50 states prohibit private militias from doing what state authorized militias do.  They are also prohibited from engaging in paramilitary training and in some states brandishing firearms in a way that it could be construed as threatening. Apart from these laws about militias, states also have terroristic threat statutes, and statutes that restrict firearm access to anyone with a history of domestic violence. There is a patchwork of additional law regarding background checks, safe storage of firearms, and collecting statistic data on firearm violence.  There is a currently a loophole in background checks because unlicensed private gun sellers are exempt from conducting background checks on potential purchasers.    

For at least 20 years, gun advocates and lobbyists have pushed open carry and concealed carry laws to the point that they are both unnecessary and a threat to public safety. There is no better example than when groups of private militias or heavily armed private citizens show up at public events or protests. History illustrates that these events can lead to confrontations, injuries, and even deaths when they are managed by law enforcement or the state militia – the National Guard. Is it realistic to think that untrained private citizens or illegal militias will do a better job?  Is it reasonable to have open carry laws on the books so that these individuals or groups can potentially function in a number of ways that contradict other laws about assuming police functions or threatening other citizens?

The only logical conclusion you can come to is that both heavily armed private citizens or unregulated militias with a stated purpose of assuming the function of well regulated militias or law enforcement have no standing at all and are much more likely to add more heat than light to the situation.  They knew that in Tombstone, Arizona back in 1881, when they passed the ordinance at the top of this post. This ordinance (in one way or another) precipitated the Gunfight at the OK Corral. We need to recognize that heavily armed citizens roaming around in our communities is unnecessary and a recipe for disaster.  Open carry laws need to be rolled back to 1881 or about 130 years after the Second Amendment was passed.

I anticipate plenty of blowback about that opinion. My only goals are public health/public safety and preventing both unnecessary deaths and the kinds of confrontations that led to this trial in Kenosha. I also wanted to get this opinion out there before there was a verdict by the jury, because at that point those opinions on what happened will fall along partisan lines. Few people seem to recognize the seriousness of this issue – both in terms of the high personal and financial cost of gun violence – but also the destabilizing effect it has on the country.      

I also realize that there is a sense of hopelessness in the United States that we will ever have sensible firearm rules resulting in safer communities.  For a generation there has been a massive misinformation campaign about gun rights. It is possible to have a Second Amendment the way it is written and have safer communities.  Rolling back open carry laws is the place to start. 

 George Dawson, MD, DFAPA



Transcript Prosecuting Attorney Closing Remarks



Transcript Defense Attorney Closing remarks



Supplementary 1: (posted on 11/19/2021 @ 12:49 PM):

I just saw the news that the defendant in this case was found not guilty on all charges.  Staying with the theme of this post that verdict is all the more reason why open carry laws need to be rolled back. I expect the usual posturing about the need for firearms to be used for self protection, but the public health issue remains - people bringing firearms to public gatherings or even to the local supermarket is a setup for violent confrontations and their outcomes. I encountered a statistic today that armed demonstrations are six times likely to turn violent than unarmed demonstrations.  If physicians and their professional organizations don't feel they can change the law - they can advocate for common sense measures and provide the supporting data.  Primary prevention of gun violence needs to start long before there are any court proceedings. 

Supplementary 2: 

I recalled today that I took an NRA Hunter's Safety Course when I was ten years old in a remote northern part of a state.  That course was taught by a military veteran who vetted us before we could even get in to the course.  He made us promise that we would no longer play with toy guns.  The main rule of the course was "Never point a gun at another person whether you think it is loaded or not."  Somewhere along the line that rule seems to have been lost by modern gun advocates.