"Kyle's Law" and the right's biggest target yet

Rittenhouse is just the beginning

Welcome to the big Sunday edition of Progressives Everywhere!

History tends to be made in fits and starts, the dates we remember and memorialize the products of accumulations of small events over the arc of time. A bomb explodes once the fuse burns down; avalanches rip down the slope after centuries of build-up, metamorphic changes, and a final triggering incident.

This week, the 50-year effort by the political right to hijack and reshape the American court system neared its final payoff. Conservative judges issued rulings and advisories that dealt blows to an array of democratic norms, from voting rights and fair maps to the federal government’s ability to issue safety regulations, while the highest court telegraphed even loftier ambitions for sabotage.

Amy Coney Barrett and Brett Kavanaugh, Federalist Society padawans groomed for this moment, openly telegraphed their determination to overturn Roe v. Wade during Supreme Court arguments that quickly proved a mere formality. With a 6-3 right-wing edge, the Supreme Court is finally extremist enough to engineer a return to Victorian-era abortion laws, no matter how overwhelmingly opposed the public is to such a barbaric regression.

The failure of our absolutist two-party system can be measured in the growing chasm that divides blue states and red states. Though very imperfect, the former are ostensibly multiracial representative democracies, while the latter are becoming increasingly akin to local autocratic regimes. This year has seen a vast divergence in state laws governing voting rights, Covid standards, and labor laws. By this spring, the Supreme Court is likely to add abortion rights to that list, and as we’ll explore in today’s newsletter, it may do the same to gun control laws.

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When twerpy teenage fascist Kyle Rittenhouse was found not guilty of murdering the two people he murdered in Kenosha last year, the right wing ecosystem quickly embraced him and championed the wannabe vigilante as their latest victim-hero.

Rittenhouse’s mother has sent out over a dozen fundraising blasts to a large conservative email list; he’s done interviews with Tucker Carlson and a stable of other race-baiting broadcasters; Donald Trump invited him to Mar-a-lago for the traditional unironic thumbs up photo; and most disturbingly, Republican lawmakers in several states have slapped Rittenhouse’s name on ghastly bills that could unleash unprecedented chaos through gun violence.

The most glaring example thus far has come in Oklahoma, where a Republican legislator recently introduced a bill that would compensate defendants that are acquitted of murder on the grounds of “justifiable homicide.” SB 1120, dubbed “Kyle’s Law” by Republican State Sen. Nathan Dahm, would reimburse those defendants for their legal fees, assorted other expenses, and any wages they may have missed out on as a result of their arrest.

If a jury determines that the prosecutor acted with malice, the defendant would then be entitled to “fair and just compensation,” while the prosecutor could be held personally liable. “Malice” is defined by the bill as “something other than a desire to bring an offender to justice” and/or a prosecution pursued with “ill will or hatred” or in a “wanton or oppressive manner” that consciously disregards the acquitted killer’s rights.

A similar bill has been introduced in New Hampshire, which is now under unified Republican government after Democrats suffered calamitous defeats in the 2020 election.

“[The bill’s passing] would be a horrifying outcome because it would chill prosecutors and police officers from being able to do their jobs in cases where, by definition, there is a victim who has been either killed or seriously injured,” says Lisa Tu, a Constitutional Litigation Fellow at the Giffords Law Center to Prevent Gun Violence. “What these bills are asking prosecutors to do is to overstep every safeguard that's been around from the beginning of American history against prosecutorial overreach, to make a call on the ultimate question of whether or not this person acted legally before prosecuting them.”

The result, Tu says, would be measurable in bloodshed.

“I am confident that if a law like this were to be passed, it would result in murderers not being charged, and it would result in murderers getting off scot free.”

Whether either state’s version of Kyle’s Law has enough support to get enacted into actual law remains to be seen — it’s far more likely to have a shot in Oklahoma, and Tu says she’s hopeful that cooler heads might prevail. But regardless of those specific bills’ prospects, legal experts are already concerned that the Rittenhouse verdict will embolden right-wing militants to pick up their guns and seek out conflict, confident that they’ll be protected by many states’ broad self-defense laws.

Losing Ground

“Stand Your Ground” laws came to national attention in 2013 when George Zimmerman was acquitted of murdering Trayvon Martin, a 17-year-old Black teenager who had the audacity to wear a hoodie while walking home on a cold February night. Outrage ensued and civil rights investigations were opened, but nothing was actually done to reform the law in Florida or anywhere else.

In fact, the past decade has witnessed the rapid proliferation of “Stand Your Ground” laws, which eliminate the requirement that people retreat from conflict in public places and provide almost insurmountable leeway to anyone claiming self-defense. That includes in cases like Zimmerman and Rittenhouse’s, who didn’t just not retreat but instead pursued violence, acting more as predator than prey.

“Stand Your Ground” laws functionally give license to white people to shoot and kill Black people, as statistics show that white shooters that kill Black victims are five times more likely to succeed with a “Stand Your Ground” defense than Black shooters with white victims. Too often, “justified homicide” is justified by racism.

States with these laws also experience significantly more overall gun homicides than states where they are not on the books; between 2005 and 2017, states where they’d been enacted experienced an 11% increase in gun homicides, while states that had not embraced easily excused carnage saw a 2% decline.

Arkansas and Ohio passed “Stand Your Ground” laws earlier this year, bringing the total number of states with them to 27.

Compounding the danger is the surge of states discarding any form of real gun control. There are now 30 states where some people can carry concealed weapons without a permit, with Iowa, Montana, Tennessee, and Utah all joining the dubious club this year. Ohio is also on the verge of passing permitless concealed carry, while Republican legislators in split-government states like Pennsylvania are champing at the bit to turn every trip to Target into potential target practice.

As with abortion rights, blue states have gone in the totally opposite direction in 2021. Democrats have passed tighter restrictions on gun ownership and usage in Virginia, Washington, New Mexico, and Colorado, among others, creating stricter background checks and safe storage requirements.

Still, laws require enforcement, and in a growing number of blue states, conservative county executives and sheriffs have declared that they will not expend resources or even enforce new gun restrictions. Even national laws are being hobbled to some degree by lower-level lawmakers; in West Virginia this summer, Gov. Jim Justice signed into law that bans law enforcement, prosecutors, and other agents of the state from cooperating with federal officials on national gun safety laws.

There is a rich irony here: The same lawmakers that vote to ban law enforcement officials from doing their jobs are also the ones that tend to wrap themselves in thin blue line flags while hailing police officers as infallible American heroes.

Supreme Danger Ahead

The country has become riddled with so-called “second amendment sanctuary” cities, with more than 1200 scattered across upwards of 40 states. Right now, Tu says, their collective pledge to not uphold any “unconstitutional” gun laws can largely be seen as political posturing for conservative audiences, but the Supreme Court may soon enshrine that willfully obtuse and nihilistic reading of the law as precedent.

Last month, the court heard arguments in a challenge to New York State’s strict concealed carry laws, and as was the case with last week with abortion, members of the conservative supermajority did little to hide their intentions.

Chief Justice John Roberts, considered the most “moderate” of the extremist sextuplet, drew no distinction between the rights guaranteed by First and Second Amendments.

“You don’t have to say, when you’re looking for a permit to speak on a street corner or whatever, that, you know, your speech is particularly important,” Roberts said. “So why do you have to show in this case, convince somebody, that you’re entitled to exercise your Second Amendment right?”

It’s a near-certainty that this court will strike down at least part of New York’s conceal carry law. The only question is whether the conservative justices will decide to detonate the very concept of gun control altogether.

“Most likely it is not just going to be that New York's law is going to be struck down, but we're going to see an entirely different doctrinal test be introduced that really severely limits the ability of legislators to pass any laws that don't have direct analogs to 1787,” Tu says. “The test that gun rights advocates and justices like Alito and Thomas and Kavanaugh have explicitly advocated for in the past is one that starts and ends with text history and tradition.”

In essence, that would neuter both states and the federal government’s ability to pass laws limiting gun ownership and usage, returning us to a literal interpretation of a clause authored by slaveowners when a ten-pound musket was the American army’s weapon of choice.

“Now we have modern gun violence issues like ghost guns and AR-15s that kill more humans in a second than the Founders would have thought imaginable,” Tu says. “It’s just so hollow and so concerning, but that's almost certainly where we're going to be: facing this almost entirely history-based comparison when evaluating what we in 2021 can even do.”

It’s hard to quickly turn the tide in a culture war, but there are clear legislative actions that Democrats can take to wrest control of of this situation: End the filibuster, ban the gerrymandering that gives Republicans uncontested control of so many states, pass national gun control legislation, and expand the Supreme Court.

Those four steps now seem politically impossible — Joe Manchin and Kyrsten Sinema have been allowed to render even the first step unlikely — but that’s only because conventional wisdom, false equivalency presented by the media, and Democrats’ fear of governing have entirely skewed our perception of popular policy. Earlier this year, polling found that two-thirds of Americans support stronger gun control laws; proposals such as more stringent background checks and red flag laws were backed by more than 80% of respondents.

Policies that are overwhelmingly popular and could save hundreds of thousands of lives should be no-brainers, which is why I have little confidence that we’ll see them pass any time in the next few decades.

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