America is suffering from a rash of prosecutors who are petty tyrants bent on fundamentally changing America by nullifying our duly enacted laws. That is as unconstitutional at the county and state level as it is at the federal level. Nothing illustrates this more clearly than the conduct of the prosecutors in the Kyle Rittenhouse trial.

Prosecutors are part of the executive branch and it is their sworn duty to uphold all laws. They have no power to nullify laws they don’t like, whether it be bail, property crimes, or the laws governing illegal aliens and immigration. A particularly damaging example of this is occurring in Wisconsin, where the fundamental right to keep and bear arms in self-defense is under attack by an outrageously abusive district attorney’s office.

We are on Day 7 of the Kyle Rittenhouse trial. The DA for Kenosha has charged Rittenhouse with murder and reckless endangerment for firing an AR-15 at four people who were attacking or threatening him with imminent harm at various points during a BLM riot. Rittenhouse killed two of the four and injured a third, and has asserted that on each occasion, he acted in self-defense.

There are generally three elements to a claim of self-defense. One, that the person claiming self-defense was not the aggressor. Two, that the person reasonably believed that the threat posed to him or her was imminent or in progress. And three, that the person reasonably believed that his response was proportional to the harm threatened.

The Kenosha District Attorney is Michael D. Graveley, although it is one of his senior assistants, Thomas Binger, who is making a name for himself—a bad one— prosecuting the case on Graveley’s behalf. As for Graveley, he should never have allowed the Rittenhouse prosecution to proceed if he did not have a reasonable basis to believe the evidence would show that one or more of those elements of self-defense did not exist.

What we have seen over the past seven days of the Rittenhouse trial is stunning. Leave aside for the moment the questionable legal ethics and bad faith the prosecution demonstrated. The prosecution, in its case in chief, did not present a single shred of evidence to rebut Rittenhouse’s claim of self-defense. On the contrary, every witness the prosecution called over five days of testimony ended up giving testimony that supported Rittenhouse’s claims of self-defense.

No team of prosecutors could have so completely misread the evidence—much of it memorialized on pictures and videos. No team of prosecutors could have so completely failed to know the testimony of the witnesses they would call in their case in chief.

Image: ADA Binger. Screen grab. 

The evidence the prosecution adduced at trial in their case in chief showed that the four individuals whom Rittenhouse shot at were, in each case, the aggressors. The evidence showed that Rittenhouse reasonably believed himself under threat of serious harm from the four individuals. And none of the evidence showed that Rittenhouse acted disproportionately to the threat.

The only reasonable conclusions are that Graveley brought this case (1) to punish Rittenhouse for defending himself and (2) to nullify the Second Amendment right to keep and bear arms in self-defense. And indeed, in his comments today to the Judge, ADA Binger admitted the latter. This, from Andrew Branca, recounting at Legal Insurrection what happened at the trial yesterday

Binger took this opportunity to assure the judge that as far as the prosecution was concerned, Kyle very much was on trial for poor judgment, as it was of the state’s theory of the case that none of these shootings would have occurred but for Kyle’s poor judgment of going to Kenosha that night with an AR.

Do you get that? The DA’s theory of the case is not that Rittenhouse failed to satisfy the legal standards for self-defense in each instance when he fired the AR-15, but that the defense should fail solely because Rittenhouse exercised his right to keep and bear arms for self-defense in the first place.

This DA is not enforcing the law of self-defense in Wisconsin and the DA is acting in total disregard of Kyle Rittenhouse’s Second Amendment rights. It is not enough for the DA to lose this case. It is not enough for Rittenhouse to be able to sue Kenosha under 42 U.S.C. § 1983 for this infringement of his Second Amendment rights under color of state law.

These out-of-control DAs need to be held criminally liable themselves for their abusive prosecutions and their nullification of the Second Amendment. We already have the necessary law: 18 U.S.C. § 242, Deprivation of Rights Under Color of Law. What we need is a federal government that will force prosecutors to end their petty tyrannies.

Wolf Howling is a pseudonym. He writes regularly at Bookworm Room.

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