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In the Kyle Rittenhouse case, I felt like he would be charged with possessing a weapon while under-age. But this charge was dropped. I looked into this and ran into this article: https://abcnews.go.com/US/wireStory/explainer-judge-drop-rittenhouse-gun-charge-81285031. It seems that if the gun is "long barreled" (which an AR-15 apparently is), there is no lower limit on the age at which someone can possess it and open carry it.

This opens the door to some strange but very possible scenarios.

What if Kyle were 9 instead of 17? He would still be legally allowed to open-carry that rifle?

And he apparently got it from a friend, not a parent or guardian. And that friend wasn't held accountable either. Does this mean I could just buy a rifle and then give it to a random 9 year old? And if said 9 year old then went and hurt someone with it, there would be no consequences for me?

I'm sure I'm missing something can someone please confirm?


EDIT: Quoting from here: https://www.nbcchicago.com/news/local/kyle-rittenhouse-reveals-how-gun-was-paid-for-in-first-interview-since-arrest/2366751/

"Wisconsin law prohibits minors from carrying or possessing firearms unless they're hunting."

Kyle was not hunting. So why was he not prohibited from possessing the firearm?

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  • This doesn’t totally answer your question, but it’s worth noting that many jurisdictions have a minimum age to be charged with a crime, usually between 6 and 12. In the US, federal criminals must be older than 11. Nov 23, 2021 at 4:54
  • I see. But if an adult gives a random child a weapon, they won't face any consequences? Even if the child goes and causes some harm with it? Nov 23, 2021 at 5:28
  • Per Wisconsin Statutes 938.12, a nine-year-old is incapable of committing a crime.
    – Mark
    Nov 23, 2021 at 6:56
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    "Wisconsin law prohibits minors from carrying or possessing firearms unless they're hunting." This is a completely incorrect statement of the law. The law may have been intended for hunting, but that's not what the law says, at all.
    – Ryan M
    Nov 23, 2021 at 8:34
  • Should also point out that, if we keep all facts the same but the age of Rittenhouse, than we should point out that one of the people shot was an individual who was not 24 hours prior to the shooting released from jail follow a conviction of five counts of child sex abuse. And on an unrelated note, the chorus of "He had it coming/ He had it coming/ He only had himself to blame!" from "Chicago" is for some reason stuck in my head.
    – hszmv
    Nov 23, 2021 at 16:34

2 Answers 2

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A child under 10 cannot be guilty of a crime in Wisconsin

As Mark points out in the comments, the relevant statutes restrict the application of criminal law to children 10 years and older. For the rest of this answer, I'm going to assume

A child under 12 having such a weapon would be a Class A misdeamanor

Per Wisconsin Statutes 948.60(2)(a):

Any person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor.

However, there's also the aforementioned exception for long-barreled rifles and shotguns in 948.60(3)(c):

This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593. This section applies only to an adult who transfers a firearm to a person under 18 years of age if the person under 18 years of age is not in compliance with ss. 29.304 and 29.593 or to an adult who is in violation of s. 941.28.

Section 941.28 refers to "Possession of short-barreled shotgun or short-barreled rifle," and is not violated, so this section wouldn't apply for that reason (this is why the underage possession charge was dropped against Rittenhouse). Section 29.593 simply describes the "Requirement for certificate of accomplishment to obtain hunting approval."

Section 29.304 covers "Restrictions on hunting and use of firearms by persons under 16 years of age," and is the most relevant section. Specifically, 29.304(1)(b) states that:

No person under 12 years of age may have in his or her possession or control any firearm unless he or she is enrolled in the course of instruction under the hunter education program and he or she is carrying the firearm in a case and unloaded to or from that class under the supervision of his or her parent or guardian, or by a person at least 18 years of age who is designated by the parent or guardian, or is handling or operating the firearm during that class under the supervision of an instructor.

So if the hypothetical armed child were 10 instead of 9, they could be charged (at least in juvenile court; I'm unclear on the rules for whether it could be charged in adult court) with that.

An adult who gave a weapon to a child (either 9 or 10 years old) in this manner would be guilty of a felony

Does this mean I could just buy a rifle and then give it to a random 9 year old? And if said 9 year old then went and hurt someone with it, there would be no consequences for me?

Per Wisconsin Statutes 948.60(2)(b) and (c),

(b) Except as provided in par. (c), any person who intentionally sells, loans or gives a dangerous weapon to a person under 18 years of age is guilty of a Class I felony.
(c) Whoever violates par. (b) is guilty of a Class H felony if the person under 18 years of age under par. (b) discharges the firearm and the discharge causes death to himself, herself or another.

So the adult could be charged with a felony, the class of which would be determined by whether anyone was killed due to the firearm being discharged. The same possible 948.60(3)(c) exception analysis applies to this as well, but because the person under 18 years of age in this scenario is not in compliance, the adult is also guilty.

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  • Thanks for the detailed answer. Per the last quoted paragraph, seems like there is a strong case against Dominick Black who brought the rifle on Kyle Rittenhouse's behalf. Let me know if I'm mistaken. Nov 23, 2021 at 9:19
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    @RohitPandey You're quite welcome. I believe you are mistaken, though: as long as the minor is in compliance with the relevant sections of the law, the entire section (including the prohibition on adults giving weapons to minors) does not apply.
    – Ryan M
    Nov 23, 2021 at 9:22
  • Ok, so help me understand this: I give a rifle (AR-15) to 10 year old who discharges and causes death; Black gives Rittenhouse a rifle who discharges it and causes death. Are both Black and me in compliance with the law? Or is Black in compliance but I'm not? If its the latter, what's causing the difference in the two cases from a legal perspective? Nov 23, 2021 at 9:34
  • @RohitPandey Black is in compliance; you are not. The difference is the age of the minor: a 10-year-old is only allowed to possess a firearm in very specific circumstances. 17-year-olds have far fewer restrictions on firearm possession.
    – Ryan M
    Nov 23, 2021 at 9:36
  • Gotcha - last question. The cut-off age I see in your paragraphs is 12 years. So if I gave a rifle to a 13 year old, I'd be in compliance just as Black is? Nov 23, 2021 at 9:38
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Pre-1991, Wisconsin criminal law ONLY prevented handguns (as well as various other things such as nunchuks and tasers) from being possessed by minors (being people under age 18), in section 948.60. https://docs.legis.wisconsin.gov/1987/related/acts/332

The Hunting code is a civil code, and it places restrictions on the use of firearms by people aged under 16, at 29.304 https://docs.legis.wisconsin.gov/statutes/statutes/29.pdf

This meant that prior to 1991, the possession of an AR-15 by a 15-year-old would not face any criminal penalties, only the civil penalty provided under 29.971 ($1000 fine).

In 1991 the Wisconsin Senate passed a law which updated 948.60 https://docs.legis.wisconsin.gov/1991/related/acts/18

Because 948.60 is a criminal law cross-referencing a civil one, the wording ends up confusing, but the effect of the revised 948.60 was that:

  • a minor who went hunting with any firearm without a hunting accomplishment certificate (29.593 of the civil hunting code)
  • a child under 16 who possessed a firearm of any kind except in accordance with 29.304

would for the first time be guilty of a crime, after the 1991 law passed.

In addition, because 948.60 does double purpose as the supply of a weapon to a minor section, an adult supplying a child with an illegal short-barreled weapon (as defined in 941.28) is also guilty of 948.60, along with the minor themself.

Therefore, 948.60 gives criminal effect to breaches of 29.304.

Hence, children aged under 16 ONLY (29.304 does not apply to 16 or 17 year olds), and the person supplying them must comply with 29.304, or commit a misdemeanor under 948.60 as the minor (subject to age of criminal responsibility of 10), or a felony as the supplying person.

Thus:

  • Age 0-11 - can only carry a firearm during a hunter education class under supervision by an instructor, or carrying it, unloaded, to or from said class, by their parent, or an adult designated by their parent
  • Age 12-13 - ditto, but can also carry a firearm while accompanied by their parent or adult designated by their parent
  • Age 14-15 - ditto, but can now possess a firearm if they have a hunter education program certificate, including from other states or countries, if evidence is provided to the department

So we can see that:

  • under Wisconsin code 29.592, no person may hunt without an accomplishment certificate, and that for a 16 or 17 year old ONLY, such hunting with a firearm becomes a criminal offence under 948.60
  • the person supplying a gun to an 0-11 commits a crime, as does the child if they are 10-11
  • it would appear to be legal for a parent to accompany their 12 or 13 year old to a riot armed with an AR-15, or for the parent to designate a person to do this
  • a 14 or 15 year old who has a hunter competency certificate can attend a riot armed with an AR-15 unaccompanied
  • a 16 or 17 year old can attend a riot with an AR-15. However, unlike 18+ year olds they cannot attend with a handgun, since 948.60 is only intended to ban minors from handguns, while giving teeth to other restrictions on the use of rifles and shotguns by minors.

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