25.11.2021

Rittenhouse and white backlash

The second amendment provides constitutional cover for a counterrevolutionary army of Boogaloos and freelance ultras, argues Daniel Lazare

The world thinks America has gone nuts for allowing 18-year-old Kyle Rittenhouse to go scot-free after using an assault rifle to kill two men and wound a third during a night of political unrest in the midwestern town of Kenosha, Wisconsin. And the world is right - America is insane. But it is important to locate the source of the craziness: it lies in a constitutional order in an advanced state of collapse.

Much of the crisis revolves around the second amendment, which has emerged in recent decades as an ideological framework for vigilantism and white backlash. According to enthusiasts, the second amendment does not merely allow Americans to arm themselves with semi-automatic weapons: it fairly compels them to. Just as the Massachusetts Minutemen felt a moral obligation to grab their muskets and face off against the British on the Lexington Green in 1775, today’s patriots feel a constitutional obligation to do the same with their AR-15s, as they battle against Black Lives Matter, Antifa, Alexandria Ocasio-Cortez and all other anarcho-leftists seen as threatening by the sacred community.

Rittenhouse’s acquittal last week on five counts of homicide, attempted homicide and other charges has added to a growing sense of emergency. On far-right websites, gun-rights advocates exult that “it’s open season on pedo-commies” and “there’s nothing you [liberals] can do about it”. The ultra-right newspaper columnist, Ann Coulter, whose specialty is baiting liberals to a frenzy, tweeted a picture of Superman, Batman and other superheroes bowing before the pudgy teenager and his rifle, while VDARE - a white-nationalist website named after Virginia Dare, the first white child born in the present-day US in 1587 - declared that “Kyle Rittenhouse is the hero we’ve been waiting for throughout the turbulent summer of 2020, where a Black Lives Matter/Antifa/Bolshevik revolution has our country on the brink of total chaos.”¹

Another far-right website said that the verdict gives “good Americans legal precedent and licence to kill violent commies without worrying about doing life in prison if we defend ourselves in a riot”. Gun Owners of America, a group challenging the National Rifle Association from the right, announced that it

will be awarding Kyle Rittenhouse with an AR-15 for his defence of gun rights in America. Join us in saying thank you to Kyle Rittenhouse for being a warrior for gun rights and self-defence rights across the country!²

Three Republican congressmen have offered him an internship in their Washington offices. ‘Rittenhouse’ has meanwhile been turned into a verb as in ‘I’m gonna Rittenhouse the next BLMer who tries to torch my neighbourhood!’

Not only has Donald Trump congratulated the defendant “for being found innocent of all charges”, but Joe Biden has endorsed the verdict as well: “Look, I stand by what the jury has concluded,” he said shortly after it was announced. “The jury system works, and we have to abide by it.” Liberals side with conservatives in support of a 234-year-old constitutional structure that is tearing US society apart.

So it goes in what is supposedly the greatest democracy on earth, in which government works less and less. Congress has been gridlocked for a generation. Democrats represent 40 million more Americans than Republicans in a grossly malapportioned Senate, in which the two parties are otherwise tied at 50 seats each. Not only is an unelected Supreme Court loosening controls, but it is now hinting at extending ‘open-carry’ gun laws to New York City, so that subway riders can enjoy the thrill of an occasional shootout just as if they were at a Wild West theme park. The Electoral College has twice overridden the popular vote since the year 2000, the 2020 presidential election ended in an attempted coup d’état, while additional electoral violence looms in 2022 and 2024.

27 words

At the centre of it all are 27 words dating from 1791: “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.” Fifty years ago, the second amendment was on nobody’s radar screen as a potential problem. With the American Civil Liberties Union declaring that “the individual’s right to bear arms applies only to the preservation or efficiency of a well-regulated [state] militia”, it was seen as conferring nothing more than the right to join a state unit of the National Guard. The problem was solved, and liberals could go back to sleep.

The ACLU’s reasoning was based on a simple syllogism. As an organisation founded on the basis of liberalism and constitutional rights, its members assumed that the founders were as rational as they were and that the constitution was as well. Hence, any suggestion that the second amendment conferred an unlimited individual right to bear arms was unthinkable, because it was irrational in the extreme.

But such circular reasoning began breaking down in the 1980s, along with the rest of the liberal programme. A growing corps of legal scholars - not all conservative, by the way - began taking issue with the ACLU on the grounds that its thinking was patently ahistorical. After all, the second amendment emerged at a time when memories of Lexington and Concord were fresh, when a musket hanging over the fireplace was a symbol of freedom, and when the first professional police forces in America were at least 50 years off. Today, “well-regulated” suggests government supervision from above. But to a militant group known as the North Carolina Regulators that arose in the 1760s, it meant something different, which is to say regulation by the people over and above the established powers. The closer academics looked, the more they concluded that the amendment was nearer in spirit to “the embattled farmers … [who] fired the shot heard round the world” than to modern-day constitutional scholars armed with textbooks and legal briefs.

Ironically, one of the opening blasts in the reappraisal movement came from a self-described “card-carrying” member of the ACLU, named Sanford Levinson - a constitutional law professor, who argued in the Yale Law Journal in 1989 that there is no evidence that 18th century Americans used the term ‘militia’ to refer to formal government-organised bodies. To the contrary:

There is strong evidence that ‘militia’ refers to all of the people, or at least all of those treated as full citizens of the community. Consider, for example, the question asked by George Mason, one of the Virginians who refused to sign the constitution because of its lack of a bill of rights: “Who are the militia? They consist now of the whole people.” Similarly, the ‘Federal Farmer’, one of the most important anti-Federalist opponents of the constitution, referred to a “militia, when popularly formed, [as] in fact the people themselves”.³

Since the anti-Federalists were those pushing most strongly for an additional bill of rights, once the constitution was ratified in 1787-88, their understanding of the second amendment carries weight. But Levinson was especially perceptive in arguing that the amendment encapsulates a “neo-republican” theory of government much at odds with the rest of the document. Where the constitution outlines a scheme of mixed government in far-off Washington, the amendment stresses “participation in government, as contrasted to mere representation by a distant leadership” (emphasis added). Levinson went on:

Just as ordinary citizens should participate actively in governmental decision-making through offering their own deliberative insights, rather than be confined to casting ballots once every two or four years for those very few individuals who will actually make the decisions, so should ordinary citizens participate in the process of law enforcement and defence of liberty rather than rely on professionalised peacekeepers, whether we call them standing armies or police.

It is a model of participatory law enforcement in which “full citizens of the community” - which in the 18th century meant property-owning white males - rely on their own resources to defend family, friends and neighbours against those not part of the inner circle.

The second amendment opens with a 12-word introduction - “a preamble, if you will”, according to Levinson. It is the only amendment with such a construction, and it therefore hints that it can be seen almost as a mini-constitution in its own right. Its language is also unusually sweeping. The first amendment merely states that “Congress shall make no law respecting an establishment of religion … or abridging the freedom of speech”, leaving open the possibility that the states could continue abridging at will - which they in fact did up to the 1920s. But the second closes with an unqualified “shall not be infringed” - meaning that the right to bear arms serves as a check on all levels of government from the local to the federal. No-one is allowed to interfere with a right that, in a bourgeois-revolutionary state, was evidently regarded as more important than even freedom of religion or freedom of speech.

Workers’ militia

The connection of all this to the killing in Kenosha is all too clear. After a white officer investigating a “domestic incident” shot a 29-year-old black man named Jacob Blake, the city - located 65 miles north of Chicago - erupted in rioting and arson. When a rightwing ex-city alderman named Kevin Mathewson formed a group called the Kenosha Guards two days later and urged local people to take up arms “to deter rioting/looting”, his Facebook post went viral. Members of the far-right Boogaloo movement, famous for their Hawaiian shirts and military fatigues, showed up, as did Rittenhouse, then just 17, driving up from his home in northern Illinois with his assault rifle in tow.

It was a classic ‘us vs them’ response to BLM supporters, lumpen street fighters and others whom middle class homeowners regard as enemies, outcasts and pyromaniacs. Local police welcomed the vigilantes and handed out bottled water in gratitude. “We appreciate you guys, we really do,” one cop told Rittenhouse and his pals. After the shooting, Rittenhouse approached a line of police cars with his rifle hanging from his neck and his hands raised, but the cops ignored him because they figured he was a friend.

The upshot is that Americans have gotten two constitutions for the price of one and are now battling over which one is greater.

Obviously, none of this makes any sense on utilitarian grounds. The idea that good guys need guns to defend themselves against bad guys is asinine, since it is often far from clear in a shootout which is which.⁴ It is a determination that cannot be made individually on the spur of the moment, but can only be made deliberately and collectively, which is why democracy requires judges, courts and other such apparatus.

Socialists may call for the formation of workers’ self-defence units to beat back fascists and scabs, but a workers’ militia has nothing in common with middle class citizens filling their basements with AR-15s, body armour and ‘bump stocks’ that turn ordinary rifles into submachine guns. One is based on working class power; the other on individual ownership. Indeed, the moment a workers’ militia goes on the offensive in a revolutionary crisis, its job will be to impose a monopoly on armed violence by not only taking control of the military and disarming the police, but by confiscating privately owned weapons from the petty bourgeoisie. Real gun control will only arrive in America on the heels of socialist revolution.

Until then, second amendment militants will continue facing off against partisans of the first, who believe that free expression will lead to a glorious liberal utopia, based on economic equality, ‘critical legal studies’ and a Green New Deal. But it is a pipedream. The more Americans adhere to an ancient constitution that makes no sense in modern terms, the more they resemble 16th and 17th century Christians going at each other over the Holy Bible.

If another Thirty Years War is what Americans want, that is what they will get.

1. twitter.com/AnnCoulter/status/1461772916643831810; twitter.com/MichaelEHayden/status/1461764866847432706/photo/1.↩︎

2. twitter.com/BradMossEsq/status/1461863662147280896. For more along these lines, see: www.dailykos.com/stories/2021/11/20/2065434/-Rittenhouse-verdict-celebrated-on-right-wing-social-media-as-green-light-for-killing-protesters.↩︎

3. S Levinson, ‘The embarrassing second amendment’ Yale Law Journal No99 (1989): digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=7254&context=ylj.↩︎

4. For an especially brilliant exposition of the problem, see: www.youtube.com/watch?v=4T41M7cCqsU.↩︎