Retail Rebellion and the Second Amendment

Authors

Darrell A. H. Miller, Duke Law SchoolFollow

Document Type

Article

Publication Date

2011

Keywords

self-defense, guns, District of Columbia v. Heller, McDonald v. City of Chicago, Fourth Amendment, Second Amendment, arrest

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.

Citation

Darrell A. H. Miller, Retail Rebellion and the Second Amendment, 86 Indiana Law Journal 939-977 (2011)