Darrell A. H. Miller

Bio: Darrell A. H. Miller is an academic researcher from Duke University. The author has contributed to research in topics: Supreme court & Right to keep and bear arms. The author has an hindex of 4, co-authored 25 publications receiving 71 citations. Previous affiliations of Darrell A. H. Miller include University of Cincinnati & Indiana University.

Retail Rebellion and the Second Amendment

Abstract: When, if ever, is there a Second Amendment right to kill a cop? This piece seeks to answer that question. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment codifies a natural right to keep and bear arms for self-defense. That right to self-defense extends to both private and public threats, including self-defense against agents of a tyrannical government. Moreover, the right is individual. Individuals -- not just communities -- have the right to protect themselves from public violence. Individuals -- not just militias -- have the right to defend themselves against tyranny. In McDonald v. City of Chicago, the Court went further, explaining that the right extends to state actors in large part due to the necessity that freedmen be able to defend themselves from tyrannical local law enforcement. But how is this right administered? If the Second Amendment protects an individual right to defend against tyranny, what does such a right look like? What does the Second Amendment say about retail forms of rebellion: threatening police officers, resisting an illegal arrest, cop killing? And how does it square with originalism, which rejects case-by-case balancing of government interests, and instead looks to history -- a history that for centuries protected a right to violently resist unlawful arrest and which placed guns in the hands of freedmen specifically to challenge unreconstructed Southern law enforcement? These questions are especially pertinent now, as individuals bring handguns to town hall meetings and assault rifles to presidential addresses, and as the Court held in McDonald that the right extends to all levels of government and to all levels of law enforcement. As Justice Breyer remarked in his Heller dissent, “to raise a self-defense question is not to answer it.” This piece attempts to formulate answers to the questions that the Second Amendment raises and will continue to raise in the area of self-defense against the police. And it concludes that for the problem of retail rebellion there is a solution: retail justice.

Analogies and Institutions in the First and Second Amendments: A Response to Professor Magarian

Abstract: In this essay, Professor Darrell Miller responds to Professor Gregory Magarian's criticism of the manner in which judges, advocates, and scholars have used the First Amendment to frame Second Amendment interpretive questions.

Text, history, and tradition: what the Seventh Amendment can teach us about the Second

Abstract: In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test, that niany jurists and scholars consider exceedingly manipulable. This Article argues that courts could look to the Supreme Court's Seventh Amendment jurisprudence, and in particular the Seventh Amendment's "historical test," to help them devise a test for the Second. The historical test relies primarily on analogical reasoning from text, history, and tradition to determine the constitutionality of any given practice or regulation. Yet the historical test is supple enough to respond to the demands of a twenty-first-century judicial system. As such, it provides valuable insights, but also its own set of problems, for those judges and scholars struggling to implement the right to keep and bear arms. Language: en

Self-Defense, Defense of Others, and the State

Abstract: I INTRODUCTION Self-defense often is described as being innate, inalienable, and individual. But the Supreme Court has never expressly held self-defense to be a constitutional right. (1) Instead, for most of American history, courts and commentators pared self-defense from criminal sanctions, plucked it from the common law, or sounded it from the penumbras of Due Process or the Ninth Amendment. (2) District of Columbia v. Heller (3) is the closest the Court has come to stating that self-defense is a constitutional right. Heller held that the Second Amendment protects the right to keep and bear an arm in the home for self-protection. (4) The majority described individual self-defense as the "central component" of the Second Amendment, (5) a right that "pre-exist[s]" the written Constitution. (6) In Heller's sequel, McDonald v. City of Chicago, the majority described the right to self-defense as "basic" and "deeply rooted." (7) Though Heller and McDonald still did not directly state that self-defense is constitutional law, these cases appear to make self-defense more a matter of federal constitutional concern than ever before. Yet, these decisions--and the lower courts that have followed them--have done little to define this "central" feature of the Amendment. Sometimes judges or commentators suggest that the terms "preexisting," "basic," and "deeply rooted" mean the Second Amendment is fixed in English common law tradition. (8) Sometimes they use these terms to mean that the Second Amendment codifies natural rights philosophy. (9) Some decisions appear to expand these sources, suggesting that Second Amendment self-defense is not tied to any one culture, nation, or time, but is trans-cultural, trans-national, and trans-temporal. (10) Some reject any human agency for the right. For them, self-defense is not a creature of constitutions, common law, history, or tradition, but is written into the soul of man by God. (11) This article investigates what it means to say the "central component" of the Second Amendment is self-defense and explores how that "central component" relates to firearm policy. It assumes that Heller understands Second Amendment self-defense to be derived from a body of Anglo-American jurisprudence that pre-exists the Founding. Given this assumption, self-defense, as well as its close relative, defense of others, has been far from inalienable, individual, or innate. Instead it has been heavily conditioned and constructed by the state. Early self-defense law in the Anglo-American tradition presumed that homicide--even in self-defense--required the pardon of the sovereign. Only those slayers who killed as an actual or constructive agent of the state were completely innocent. Especially when self-defense extended beyond the home to the public, to the defense of others, and to the apprehension or prevention of a felony, state construction and regulation of self-defense was the rule, not the exception. This article supports this historical investigation with new scholarship on political philosophy and theories of justification. These scholars argue that self-defense and defense of others depend on notions of public authority. As one theorist states, private citizens have power to execute their judgment "only insofar as they stand in the shoes of public officials to whom this authority belongs." (12) These theories of justification arise from, and respond to, early modern or Enlightenment philosophy, but are not bound by them. Although the issue is contestable, this article assumes that the Constitution does not enact the political philosophy of Thomas Paine or John Locke any more than it "enact[s] Mr. Herbert Spencer's Social Statics." (13) It assumes that an accurate legal description of the "central component" of the Second Amendment does not depend upon what James Madison or Thomas Jefferson thought about self-defense, but rather requires an understanding of the common law canvas upon which the Second Amendment was written as glossed by our best account of political philosophy. …

The Positive Second Amendment: Rights, Regulation, and the Future of Heller (Introduction)

Abstract: This is the introduction to Joseph Blocher & Darrell A. H. Miller, The Positive Second Amendment: Rights, Regulation, and the Future of Heller (Cambridge University Press 2018). The Second Amendment is among the most recognized provisions of the Constitution. It is also perhaps the most misunderstood. Common misconceptions about the amendment - what it forbids, what it permits, how it functions as law - distort the gun debate and America's constitutional culture. In The Positive Second Amendment, Blocher and Miller provide the first comprehensive post-Heller account of the history, theory, and law of the right to keep and bear arms. The book’s aim is not to pick sides in the gun debate, but rather to show how a positive account of the 'constitutional' Second Amendment differs from its political cousin. Understanding the right to keep and bear arms as constitutional law will challenge many deeply held beliefs. But it may also provide a better way to negotiate the seemingly intractable issues that afflict America's debate over gun rights and regulation.

Current index to legal periodicals

Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

Constitutional Dimensions of the Corporate Person: Corporate Free Speech

Abstract: The term “corporation” does not appear anywhere in the United States Constitution, yet the United States Supreme Court has held that corporations are entitled to claim an extensive array of constitutional rights. The justifications for these rights have developed from the many different conceptions of the corporation as a legal, moral, economic, social, and political actor. In particular, the constitutional dimension of the corporation’s personhood is an extension of its legal personhood. Therefore, the fundamental legal theories of the corporate person, i.e., the artificial person, aggregate, and real entity theories, have had a role in supporting the extension of constitutional rights to corporations. The moral and sociological dimensions of the corporate person have also been important. In determining the scope of corporate constitutional rights, the Supreme Court has considered the actual and normative roles and purposes of corporations in our pluralistic and democratic society. Considerations of corporate power, both economic and political, have contributed as well to the debate over which constitutional rights appropriately apply to corporations.

Constitutional Dimensions of the Corporate Person: Corporate Religion and Race

Abstract: The idea that the corporation is a person entitled to certain constitutional rights has become the subject of intense debate in the context of religion and race. To what extent can and should corporations be regarded as persons with the status to claim fundamental religious liberty rights and racial equality rights? Can a corporation be associated with a certain religion or race if most or all of its human members identify with one religion or race? Does it make sense to say that the corporation itself can possess and exercise religious beliefs, thereby entitling it to religious liberty rights? Is it possible for a corporation to have a racial identity, thereby affording it standing to claim it has been discriminated against on the basis of its race? Cases involving such questions have generated significant controversy in recent years. The Supreme Court has affirmed the statutory right of corporations to freely exercise religion, and federal courts have developed a body of law to allow corporations to assert racial discrimination claims.

Constitutionalizing World Politics: The Logic of Democratic Power and the Unintended Consequences of International Treaty Making

Abstract: The elusive ideal of a world constitution is unlikely to be realized any time soon – yet important steps in that direction are happening in world politics. Milewicz argues that international constitutionalization has gathered steam as an unintended by-product of international treaty making in the post-war period. This process is driven by the logic of democratic power, whereby states that are both democratic and powerful – democratic powers – are the strongest promoters of rule-based cooperation. Not realizing the inadvertent and long-term effects of the specialized rules they design, states fall into a constitutionalization trap that is hard to escape as it conforms with their interests and values. Milewicz's analysis will appeal to students and scholars of International Relations and International Law, interested in international cooperation, as well as institutional and constitutional theory and practice.