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.
TL;DR: In this article, the use of the Declaration as a law-making ritual was explored, an example of what Richard Primus calls a continuity tender, an inherited ritual formula that one repeats to affirm a connection to one's predecessors, but not necessarily to endorse the content of that statement as one’s predecessors originally understood it.
Abstract: This Article explores the use of the Declaration as a law-making ritual, an example of what Richard Primus calls a “continuity tender”: “[A]n inherited ritual formula that one repeats to affirm a connection to one’s predecessors,” but not necessarily “to endorse the content of that statement as one’s predecessors originally understood it.”3 This Article progresses in three parts: Part I explains why the Declaration is not law in a positive sense. Part II suggests that the Declaration is not law, but is rather a continuity tender. Building on the work of Primus, this Part introduces the concept of continuity tenders and explains their operation during periods of consensus and conflict. Part III explains how the Declaration
TL;DR: The Second Amendment often dominates the public debate over gun policy, as both a symbol and a right enforceable in the courts as mentioned in this paper, and the Second Amendment is the product of that dialogue.
Abstract: The cacophonous and charged public debate over gun policy reflects a nation deeply divided about the appropriate balance between gun rights and gun regulation. (1) The Second Amendment often dominates that debate--as both a symbol and a right enforceable in the courts. On April 8, 2016, scholars from diverse disciplinary backgrounds met at New York University School of Law to present new scholarship, a second generation of research, about this important constitutional provision. (2) This issue is the product of that dialogue. Of course, a second generation implies that there was a first generation. The first generation of scholarship ended in 2008, when the Supreme Court issued the most important Second Amendment decision in the Court's history--District of Columbia v. Heller. (3) That first generation focused on a single question: Does the Second Amendment protect an individual right to keep and bear arms for self-defense, or a collective right connected to the maintenance of a well-regulated militia? This question garnered relatively little attention before the early twentieth century. Before then, federal gun control, as we understand it today, did not exist, and Second Amendment issues rarely arose. As Judge Thomas Cooley wrote in 1868: "How far it is in the power of the legislature to regulate [the Second Amendment] right, we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts." (4) To be sure, many states and localities regulated weapons and some of these regulations were challenged on state constitutional law grounds. But generally these laws did not generate sustained Second Amendment analysis in light of the understanding, set forth most famously in Barron v. Baltimore, (6) that the Bill of Rights limited only the federal government. (7) By the early 1900s, however, urbanization, crime, and the increased lethality of concealable weapons prompted calls for reform. (8) State and local governments were the first to heed the calls, passing broad restrictions on the possession and carrying of handguns, (9) but federal regulation was on the horizon. The opportunity to address the meaning of the Second Amendment right had arrived. Legal commentators in the first half of the twentieth century came to a fairly uniform conclusion: the Second Amendment protected a collective, not individual, right. (10) The right was primarily concerned with the maintenance of a "well regulated Militia." (11) Thus, the Second Amendment would not prevent the federal government from passing laws targeting the possession and use of guns in crime. A 1915 essay by Maine Supreme Court Justice Lucilius A. Emery in the Harvard Law Review summarized the basis for this position, noting that "the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic." (12) Later, in 1934, the very first volume of Law and Contemporary Problems included an article mirroring this understanding, opining that "no regulation or restriction of firearms or weapons is in conflict with [the Second] Amendment unless it substantially impedes the maintenance of a militia sufficiently well-equipped to assure the safety of the state." (13) That same year, Congress enacted the first federal law that could reasonably be called national gun control, the National Firearms Act. (14) More than ever before, the National Firearms Act provided the occasion for the Supreme Court to consider the scope of the Second Amendment. In 1939, in United States v. Miller, a unanimous Supreme Court upheld the National Firearms Act's prohibition on interstate transport of short-barreled shotguns. (15) In so doing, the Court confirmed the growing consensus in legal scholarship about the meaning of the Second Amendment. "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia," the Court explained, "we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. …
TL;DR: In this article, the authors explore the relationship between lethality and the right to bear arms, and consider how that relationship might be shaped by the availability of non-lethal alternative weapons.
Abstract: This Article explores the relationship between lethality and the right to bear arms, and considers how that relationship might be shaped by the availability of non-lethal alternative weapons. Prior scholarship has asked whether the Second Amendment includes a right to carry non-lethal “Arms.” An important set of related questions remains: does the Second Amendment necessarily include a right to arm oneself publicly with lethal force, if non-lethal alternatives are available? And how should one evaluate the adequacy of those alternatives?
TL;DR: In the summer and winter of 1865, a moderately successful Boston novelist and newspaperman named John Townsend Trowbridge toured the South and came across an embittered Alabama planter who explained what he expected would happen once the federal government stopped its Reconstruction efforts:
Abstract: n the summer and winter of 1865, a moderately successful Boston novelist and newspaperman named John Townsend Trowbridge toured the South. The Civil War had ended, but the South still smolderedfiguratively, if not literally. On a steam-boat trip, Trowbridge came across an embittered Alabama planter who explained what he expected would happen once the federal government stopped its Reconstruction efforts:
01 Jan 2014
TL;DR: Second Amendment disputes used to cleave along one dimension: collective versus individual rights No more, since a majority of the Justices of the United States Supreme Court broke in favor of individual rights in District of Columbia v Heller and McDonald v City of Chicago, tremendous litigation pressure has fragmented Second Amendment theory and doctrine.
Abstract: Second Amendment disputes used to cleave along one dimension: collective versus individual rights No more Ever since a majority of the Justices of the United States Supreme Court broke in favor of individual rights in District of Columbia v Heller1 and McDonald v City of Chicago,2 tremendous litigation pressure has fragmented Second Amendment theory and doctrine The pressure is unlikely to ease soon Motivated parties, well-financed advocacy organizations, and the prospect of attorneys’ fees guarantee that every question of who, what, where, when, and why concerning the right to keep and bear arms is going to be asked, and will demand an answer Currently, the most pressing doctrinal question splitting the circuits, at the broadest level of generality, is whether the Second Amendment right to keep and bear arms extends beyond the home The Ninth Circuit recently has entered that debate In Peruta v County of San Diego,3 a divided three-judge panel of the Ninth Circuit held that the Second Amendment is not home-bound Judge O’Scannlain, writing for the majority, held that the Second Amendment scope includes a right to carry firearms for confrontation in the streets The state of California has sought en banc review Petitions for certiorari are pending in similar cases It is likely we will see a Supreme Court resolution to this issue in the next few years At that point, the Supreme Court must mend not only doctrinal splits — does the Second Amendment extend beyond the home? — but also methodological ones — how is a court even to answer that question? To date, most judges have been methodologically pluralist: relying on some combination of history, precedent, empirical data, pragmatism, and judicial deference to reach their conclusions These judges typically use history only for evaluating the threshold issue of whether the Second Amendment is implicated at all Tailoring the right is the place for tiers of scrutiny, for empirical data, for weighing of interests, for pragmatics
01 Jan 2014
TL;DR: In this paper, Cardozo et al. proposed a model for conflict resolution in the context of bankruptcy resolution, which is based on the work of the Cardozo Institute of Conflict Resolution.
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.
01 Aug 2019
TL;DR: For example, the United States Supreme Court has held that corporations are entitled to claim an extensive array of constitutional rights as discussed by the authors, and the justifications for these rights have developed from the many different conceptions of the corporation as a legal, moral, economic, social, and political actor.
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.
01 Aug 2019
TL;DR: The idea that a corporation is a person entitled to certain constitutional rights has become the subject of intense debate in the context of religion and race as mentioned in this paper, which has generated significant controversy in recent years.
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.
23 Jul 2020
TL;DR: Milewicz as mentioned in this paper argues that international constitutionalization has gathered steam as an unintended by-product of international treaty making in the post-war period, whereby states that are both democratic and powerful are the strongest promoters of rule-based cooperation.
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.