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Was Kyle Rittenhouse's possession of a gun protected by the Second Amendment?

Analysis: His attorney plans to argue that the teen was part of a “well regulated Militia” mentioned in the Second Amendment. Is that argument likely to succeed?
Kyle Rittenhouse, left, walks along Sheridan Road in Kenosha, Wis., on Aug. 25, 2020, with another armed civilian.
Kyle Rittenhouse, left, walks along Sheridan Road in Kenosha, Wis., on Aug. 25, 2020, with another armed civilian.Adam Rogan / The Journal Times via AP

One item really sticks out on the list of charges against Kyle Rittenhouse, the 17-year-old from Illinois arrested after two people were shot and killed during protests over the police shooting of Jacob Blake in Kenosha, Wisconsin.

Along with five felony charges that include first-degree reckless homicide and first-degree intentional homicide, Rittenhouse was also charged with a sixth crime: possession of a dangerous weapon by a person under 18. And that will give rise to an interesting defense by his lawyer — one that is not likely to succeed.

Rittenhouse’s attorney, John Pierce of Pierce Bainbridge, plans to fight the underage weapons possession charge, arguing that at 17, his client could be part of the “well regulated Militia” mentioned in the Second Amendment to the U.S. Constitution. Put another way, Pierce will likely argue that Wisconsin’s ban on firearms possession by 17-year-olds is unconstitutional because a 17-year-old minor is on the same Second Amendment footing as an adult.

Therefore, the argument goes, the Wisconsin law unconstitutionally restricts Second Amendment-protected firearms possession. Pierce will likely add that the American colonies expected, and sometimes required, citizens under 18 to have and bear arms.

That will be a reach, for several reasons. In the 2008 Supreme Court case District of Columbia v. Heller, Justice Antonin Scalia expressly stated that "Like most rights, the right secured by the Second Amendment is not unlimited.” Up through the 19th century, “commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose," he added.

Scalia's opinion listed examples of valid, “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Underage possession of firearms was not specifically mentioned on that list, but the court added that this “list does not purport to be exhaustive."

In other cases on gun rights since the Supreme Court ruled on Heller, federal courts have held that modern “under 21” restrictions on handgun purchases are “firmly historically rooted” and that the "right to keep arms in the founding period did not extend to juveniles."

It is true that many colonies permitted, and sometimes mandated, firearms possession by minors for purposes of militia service. However, as the Illinois Supreme Court has put it, “nothing like a right for minors to own and possess firearms has existed at any time in this nation's history.”

Even if the framers and the colonists approved of mandatory firearms possession by juveniles, this does not translate to an immutable right to own or possess them. According to the courts, and the Constitution, juveniles like Rittenhouse apparently have less Second Amendment rights to carry assault rifles than adults do.

CORRECTION (Aug. 31, 2020, 10:50 p.m. ET): A previous version of this article misstated the nature of the sixth charge against Rittenhouse. Possession of a dangerous weapon by a person under 18 is a misdemeanor, not a felony.

Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.