Rather than simply acknowledge that Rittenhouse’s claim to self-defense is a strong one, Bloomberg.com’s Noah Feldman is instead trying to pin the blame on the Second Amendment, claiming that “when gun rights get involved, the law tends to depart radically from common sense.”

It’s an absurd statement, but what else is a gun control advocate supposed to do when even prosecutors acknowledge that Rittenhouse was actually fleeing a crowd of angry agitators, and only fired after one of them reached for the barrel of his rifle?

As Feldman notes, in Wisconsin you can use deadly force to protect yourself if you reasonably believe it’s necessary to prevent imminent death or great bodily harm, either to yourself or others. Feldman also acknowledges that Wisconsin has no duty to retreat, though he fails to point out that’s exactly what Rittenhouse was doing before he fired his first shots.

The trouble begins when you start applying the legal rules to someone in Rittenhouse’s situation, namely, someone who has carried an AR-15-style weapon to what is intended to be a peaceful protest. In a commonsense universe, this act itself would appear to be a provocation.

Nonsense. We can argue over how smart it was for Kyle Rittenhouse to have gone to Kenosha to stand guard over a business that wasn’t his, but it’s not a provocation to show up when there’s been rioting and destruction for days and a good part of the downtown’s been gutted by flames. At that point there was no intention of peaceful protesting on the part of the far-left agitators that had taken to the streets for several nights in a row.

However, it’s important that Feldman tries to portray the very act of carrying a gun as a provocation, given the fact that Rittenhouse was, in fact, provoked by an angry mob that pursued him, with at least one of them firing a shot of their own into the air before Rittenhouse ever pulled the trigger on the rifle that he was carrying. Feldman’s trying to make the case that Rittenhouse was the initial aggressor simply by being present in Kenosha with a gun.

Common sense is even further displaced when you start to think about how Rittenhouse would claim to have reasonably considered himself to be in danger of imminent death or bodily harm. The criminal complaint against Rittenhouse says that Joseph Rosenbaum, his first victim, approached Rittenhouse and then followed him. Cell phone video shows Rosenbaum — who doesn’t look like he’s got a gun — throwing a plastic bag at Rittenhouse and missing. Rittenhouse then allegedly shot Rosenbaum four or five times, killing him.

Ordinarily, being followed or having a plastic bag thrown at you would not be enough evidence to show that you were in reasonable fear of your life. If someone threw a plastic bag at you, and you responded by killing that person with your bare hands, you would most likely go to jail for murder.

A gun twists that logic. Rittenhouse can and presumably will claim that he feared Rosenbaum would take his gun away from him and shoot him with it. In other words, the presence of Rittenhouse’s own weapon gives Rittenhouse the opportunity to claim that he was in fear of bodily harm.

This is an awfully selective reiteration of what actually happened. Feldman ignores the fact that someone fired a shot into the air as they were chasing Rittenhouse (it’s unlikely that Rittenhouse would have been looking backwards to see where exactly the handgun was pointed when the agitator discharged their firearm). He also describes Rosenbaum as simply throwing a plastic bag at Rittenhouse before Rittenhouse fired, without ever referencing or even acknowledging what eyewitness Richie McGinniss of the Daily Caller told police.

McGinnis stated that the first round went into the ground and when the second shot went off, the defendant actually had the gun aimed at Rosenbaum. McGinnis stated he did not hear the two exchange any words. McGinnis said that the unarmed guy (Rosenbaum) was trying to get the defendant’s gun. McGinnis demonstrated by extending both of his hands in a quick grabbing motion and did that as a visual on how Rosenbaum tried to reach for the defendant’s gun. Detective Cepress indicates that he asked McGinnis if Rosenbaum had his hands on the gun when the defendant shot. McGinnis said that he definitely made a motion that he was trying to grab the barrel of the gun. McGinnis stated that the defendant pulled it away and then raised it. McGinnis stated that right as they came together, the defendant fired. McGinnis said that when Rosenbaum was shot, he had leaned in (towards the defendant).

Feldman leaves all of that out, saying only that “Rittenhouse can and presumably will claim that he feared Rosenbaum would take his gun away from him and shoot him with it. In other words, the presence of Rittenhouse’s own weapon gives Rittenhouse the opportunity to claim that he was in fear of bodily harm.”

Nonsense. Rittenhouse can reasonably claim that he was in fear of bodily harm the moment that Rosenbaum and others began chasing him down the the street, with at least one person firing a shot into the air as he tried to escape them.

It seems little short of absurd that a person who carries a gun in public and is then pursued could use the fact that he and not his victim was armed to claim that he had to shoot in self-defense. And maybe a jury wouldn’t buy it. But it is not unlikely that a judge would allow him to advance the argument. Again, the existence of laws that allow open carry is distorting ordinary logic.

Again, Feldman is crafting a false narrative here. He makes it sound like Rosenbaum was the only person chasing down Kyle Rittenhouse, when McGinniss made it clear to police that there were multiple individuals chasing Rittenhouse, who hadn’t done anything to provoke them. From the charging documents:

..before the defendant [Rittenhouse] reached the parking lot and ran across it, the defendant had moved from the middle of Sheridan Road to the sidewalk and that is when McGinnis saw a male (Rosenbaum) initially try to engage the defendant. McGinnis stated that as the defendant was walking Rosenbaum was trying to get closer to the defendant. When Rosenbaum advanced, the defendant did a “juke” move and started running. McGinnis stated that there were other people that were moving very quickly. McGinnis stated that they were moving towards the defendant. McGinnis said that according to what he saw the defendant was trying to evade these individuals.

Feldman’s narrative relies on his theory that Rittenhouse was the aggressor that night, simply because he was there. And of course, if Rittenhouse’s killing of Rosenbaum wasn’t in self-defense, then he couldn’t have been acting in self-defense when he was again pursued by the mob. Here’s how Feldman describes what happened after Rosenbaum was shot.

The second victim, Anthony Huber, allegedly tried to grab Rittenhouse’s gun. He, too, was unarmed. Some accounts suggest that he may have hit Rittenhouse with a skateboard. Of course by now, Rittenhouse had shot and killed Rosenbaum. That could possibly be depicted as an act of provocation, so that Rittenhouse cannot claim self-defense in his shooting of Huber.

In a sensible world, the fact that Huber may have tried to disarm Rittenhouse, who had just shot Rosenbaum, would turn Huber into a martyred hero — not someone who posed a lethal threat to the shooter.

In a sensible world Feldman would at least be honest enough to acknowledge that none of this would have happened had Rosenbaum and others simply allowed Rittenhouse to walk down the street without trying to accost him.

Finally, Rittenhouse shot and injured Gaige Grosskreutz, who approached Rittenhouse while armed with a handgun. This is the only one of the three shootings that should even conceivably be considered as potential self-defense, because Grosskreutz was armed. But if Grosskreutz believed that Rittenhouse was a shooter on a spree — because Rittenhouse had just killed two men — then it also defies common sense to think that Rittenhouse was entitled to shoot him in self-defense just because Grosskreutz was armed. What about Grosskreutz’s right to self-defense?

Besides the fact that Rittenhouse was running away, you mean?

The upshot is that Rittenhouse’s self-defense arguments may well go to a jury; and it’s not at all impossible that a jury might acquit him, except on the illegal underage possession of firearms charge. If that happens, the law on the books will have more or less been followed. But the gravitational pull of the right to bear arms will have made a mockery of our aspiration for the laws to make common sense. When there are guns involved, common sense goes out the window.

I’d say that when guns are involved, Noah Feldman’s willingness or ability to describe what happened goes out the window. What’s really fascinating to me is that Feldman admits that a jury might well find that Rittenhouse acted in self-defense, but he can’t actually bring himself to say why; that the evidence we’ve seen to date doesn’t point to Rittenhouse acting as the initial aggressor in the situation. Instead, Feldman talks about the mystical “gravitational pull of the right to bear arms” and proclaims that the right of armed self-defense somehow impedes our ability to think critically about these situations. Having failed to prove Rittenhouse’s guilt, Feldman falls back on trying (and failing) to indict the Second Amendment instead.