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Kmiec v. Kmiec regarding Heller:

Douglas Kmiec has sharply criticized the majority opinion in District of Columbia v. Heller. E.g., Slate, July 8, 2008 (majority opinion amounts to unjust rule by judicial fiat); Tidings, July 11, 2008 (Heller majority misconstrued the Second Amendment, had no basis in "Constitutional text, history, and precedent", and also violated the "long-standing teaching of the American Catholic bishops".) See also Slate, March 17, 2008 (Second Amendment's anti-tyranny purpose is obsolete, and the Court should not create a new purpose for the Amendment).

Contrast the viewpoint in these articles with that of an amicus brief filed in support of Heller, and in opposition to the District of Columbia:

Amici believe that the Amendment secures to individuals a personal right to keep and bear arms and that the decision below correctly interpreted and applied the Amendment in this case....If the Second Amendment does secure an individual right, then this case lies within its very core. For if that right means anything, it surely protects the right of a law-abiding citizen to keep an ordinary handgun in his own home for self defense. The District of Columbia's laws prohibit this, and so are to that extent unconstitutional.
That amicus brief was the filed by "Former Senior Officials of the Department of Justice in Support of Respondent." The Appendix provides a list of "Amici Curiae in Support of Respondent." The amici list states: "Douglas W. Kmiec served as Assistant Attorney General for the Office of Legal Counsel from 1988 to 1989."

It seems odd for a legal scholar to reverse his view of a major constitutional issue so completely and so vehemently in a such a short period of time, especially without an expalanation of how he came to the conclusion that his former view was so utterly mistaken--or without even an acknowledgement that he recently held his former view so firmly that he urged the Supreme Court to adopt it.

UPDATE: Professor Kmiec's response (via a cordial e-mail to Eugene Volokh):
I joined the brief of former DOJ officers because at the time I thought the Court would benefit from a more complete statement of how the Department of Justice had construed the Second Amendment in past litigation and testimony; the former officer DOJ brief was primarily intended to supplement an incomplete presentation filed on behalf of former Attorney General Reno and others. My former OLC colleague, Charles Cooper, was the brief's primary drafter, and while I supported his able presentation of the prior DOJ history, again clearly identified as the reason for the brief, I ultimately did not share -- after the additional study I am certain many of us did of all the materials filed in the case — the bit of advocacy quoted by Professor Kopel. That ultimate difference of view I do not think disserved the core purpose for assisting the Court for the limited purpose described.
My response: As Professor Kmiec points out, the bulk of the brief is devoted to correcting the Janet Reno/Eric Holder/et al. amicus brief's mischaracterization of the historical position of the United States Department of Justice. However, the Conclusion of the brief is "For the foregoing reasons, the decision of the Court of Appeals should be affirmed." The first sentence which I quoted above was from the "Interest of Amici Curiae" and the latter two sentences were from the "Summary of Argument." So these sentences were not ornamental advocacy, but the very heart of the brief. I still do not understand why the Court's adoption in June of exactly what Professor Kmiec urged in February is not only incorrect, but utterly indefensible and lawless, as he claimed in July.

john h (mail):
It seems odd for a legal scholar to reverse his view of a major constitutional issue so completely and so vehemently in a such a short period of time...

Not terribly surprising given the source. This is the same guy who went from Romney to Obama, then spent six months trying to make the case that Obama was the best candidate for pro-lifers. Nobody is quite sure what happened to him, but on the plus side he got to write lots of Op-Eds for the LA Times and the NYTimes which helped his book sales.....
1.6.2009 8:00pm
J. Aldridge:
Many scholars are much like lawyers you know? They'll argue whatever their client desires of them.
1.6.2009 8:09pm
10ksnooker (mail):
Obviously, he thought no one would know. He needed to reverse course because he wants a job.
1.6.2009 8:17pm
commontheme (mail):
Did you send him an e-mail and ask for an explanation?
1.6.2009 8:18pm
Order of the Coif:
Has he, perhaps, received a Joyce Foundation grant?
1.6.2009 8:29pm
NickM (mail) (www):
Somebody check under his shirt for the alien attached to the back of his neck.

Nick
1.6.2009 8:31pm
Bob from Ohio (mail):
Man does this guy want a S/C appointment or what.

He abandons all his beliefs one after another.
1.6.2009 8:39pm
Bill Kilgore:
Mr. Kopel- I believe if you read the July 11, 2008 article again, you will find what you seek.

I certainly don't think that the reason he changed his mind represents a strong argument. I do think, however, that his personal story reads as a pretty clear explanation for the change in his views.
1.6.2009 8:59pm
CDU (mail) (www):
The reverse is particularly puzzling since the position he originally advocated won in the Supreme Court. I could see someone who was on the loosing side of an argument changing his mind, but someone who's position won doing so is a little odd.
1.6.2009 9:04pm
Joseph Bottum (mail):
Bill Kilgore wrote, "I believe if you read the July 11, 2008 article again, you will find what you seek."

Doesn't the article describe events that occurred 16 years earlier and thus offer no explanation for the reversal his position underwent between February and July of 2008? Or did I misread it?
1.6.2009 9:18pm
genob:
follow the money.
1.6.2009 9:19pm
fortyninerdweet (mail):
10ksnooker is correct. Its called Job Security. The political wind is blowing from another direction, so one's learned opinions must change.
1.6.2009 9:20pm
luci:
Mr. Kilgore,

I've read the July 11, 2008 editorial, and it doesn't provide any explanation for why Kmiec had previously supported the winning position in Heller. In fact if one only read that editorial, one would come away with the impression that Kmiec has consistently believed that the 2nd Amendment only protects a collective right for the past 16 years. It's a bit of dishonesty by omission. The man is either deeply confused or managed to con people for years that he was principled.
1.6.2009 9:20pm
krs:
Second Amendment's anti-tyranny purpose is obsolete

Interesting. I knew that we cured smallpox, broke the sound barrier and put a man on the moon, but I wasn't aware that tyranny was no longer something people were concerned about.
1.6.2009 9:29pm
whit:

Second Amendment's anti-tyranny purpose is obsolete


ha!

the fact that somebody could make that statement with a straight face, just reinforces the need for a 2nd amendment.

"it can't happen here".

reminds me of mayor schell's reaction to the WTO coming to seattle. "well, just because there were riots in europe doesn't mean it can happen here. this is seattle after all" (words to that effect)
1.6.2009 9:31pm
NaG (mail):
It is possible that he joined in the amicus brief without really reading it, or was added to the list without his knowledge or consent. Snafus like that make more sense than to think that he had a sudden and dramatic change of heart.
1.6.2009 9:36pm
RPT (mail):
"fortyninerdweet:

10ksnooker is correct. Its called Job Security. The political wind is blowing from another direction, so one's learned opinions must change."

I understood that he has tenure at Pepperdine, which is not likely to be changing its ideological orientation, at least not under Dean Starr's leadership.
1.6.2009 9:37pm
James Lindgren (mail):
Another scholar who switched on Heller, though not over a short time, was Pulitzer-prize winning historian Jack Rakove. In 2001, Randy Barnett and I were on a panel with Rakove in San Francisco. After Jack and I both said most restrictions on guns were constitutional, we were asked about DC's complete ban. Like me, Rakove said that the DC ban was unconstitutional b/c it violated the 2d Amendment.

Thus, I was surprised that Rakove was the most prominent scholar to sign a brief in Heller arguing that the DC ban was constitutional.

That someone of Rakove's stature would endorse such a poorly supported position may have been one reason why Justice Stevens was taken in.

Jim Lindgren
1.6.2009 11:00pm
Roy Mustang (mail):
Kmiec? Isn't he the same scumbag that was trying to convince everyone that Obama was, in fact, pro-life?
1.6.2009 11:11pm
ronnie dobbs (mail):
Either Kmiec's whoring after a gov't job in the Obama Administration or someone has come across some naughty pictures of Prof. Kmiec with a dead girl (or a live boy).
1.6.2009 11:23pm
bababooey (mail):
I don't think Kmiec is a scumbag; that seems extreme.
1.6.2009 11:48pm
therut (mail):
I have not figured the guy out but something stinks. Not only his 2nd amendment position and that he has the nerve to say is aganist the "long standing teaching of AMERICIAN bishops" when abortion is a deadly sin so says the POPE not just some AMERICIAN bishops who lean left. Who is this guy really??????
1.6.2009 11:54pm
wyswyg:
Second Amendment's anti-tyranny purpose is obsolete

I see that being an illogical moron is no bar to being a law professor. Not that I needed any reminder on that point.
1.7.2009 1:30am
James Gibson (mail):
Holding a view on firearms that is contrary to Bishops isn't new. The Methodist bishops hold against any firearm ownership (handgun or long-gun). And all religious orders hold that the military draft is immoral and thus wrong. Yet when it comes down to protecting their lives or their churches the Bishops are very happy to have a group of soldiers or police, or even militia, come to their aid: blessing them with one hand and ex-communicating them with the other.
1.7.2009 2:15am
Wahoowa:
I'm probably not the only one who thinks this about face goes hand in hand with his sudden love for all things to the left of where he used to be.
1.7.2009 2:39am
Bill Kilgore:
My mistake. I rolled through the post rather quickly and assumed the quoted text was authored in 1989. I then assumed that the family tragedy, occurring in 1992, influenced Mr. Kmiec's views. In short, you just witnessed a rare Double-Pelosi.

In the spirit of the Holidays, I will only be billing Mr. Kopel for my second comment.
1.7.2009 3:09am
Blithering Idiot (mail) (www):
Prof. Kmiec is seeking a judicial appointment, pure and simple. He may, instead, be Obama's ambassador to the Vatican. Or he may end up being the Attorney General for Wales, as was his mentor, Sir Richard Rich.
1.7.2009 8:10am
TinfoilHatter (mail):
I'm no attorney, but...

From the Slate Article cited in the original...

"The operative provision: "the right of the people to keep and bear arms, shall not be infringed" is a provision that employs a collective "the people," and in this, it would not seem well-suited to convey the idea of an individual right."

So, Professor Kmiec would ask me to believe that the well established INDIVIDUAL rights in the 1AMD, 4AMD, and 5AMD using the term "right of the people" are somehow different in usage than the "right of the people" terminology in 2AMD?

So, I'm to believe Professor Kmiec that the Drafters meant AN ENTIRELY different use of the same clause? Or, am I to believe that Professor Kmiec simply knows not of what he speaks?

Like I said, I simply lack the level of legal sophistication that Professor Kmiec possesses.
1.7.2009 8:53am
rosignol (mail):
Holding a view on firearms that is contrary to Bishops isn't new.

Sure, but bishops are no more an authority on what the 2nd A means than I. Why he would bring their opinion into it is bizarre, and causes me to wonder how much time he's spent thinking about the 1st A.
1.7.2009 9:17am
Scalito (mail):
As one who has crossed paths with Professor Kmiec for several years, this sudden transformation has been one of the saddest things I have ever witnessed. The Doug Kmiec I knew was a sharp legal mind and a man of honor and integrity. The creature he has become, untethered from any discernible judicial theory and apparently devoid of either principles or scrupples is mind blowing to those of us who knew him way back when. I have heard from very reliable sources that he is in a great deal of trouble at Pepperdine--his teaching has slipped and his scholarship is less-then-stellar. Perhaps his most recent posturing is a desperate attempt to get a judgeship before he is forced out of his current job. The sad thing is, with his despicable conduct, he will almost certainly be targeted for a Senatorial hold on any attempted appointment.
1.7.2009 9:31am
PaulK:

Why he would bring their opinion into it is bizarre, and causes me to wonder how much time he's spent thinking about the 1st A.


Mentioning the USCCB's take on the 2d Amendment isn't bizarre because of the 1st Amendment, with which it has absolutely nothing to do, but rather because the USCCB statement on handguns is itself bizarre and non-magisterial and does not even purport to relate to what the Constitution actually requires. Some lay bureaucrat in the conference office wrote the document to which he is referring---and the document itself is a policy recommendation, not an instruction on the content of the divine or natural law. So it has slightly more weight on the conscience of judges than, say, the Pope's affection for stray cats.
1.7.2009 9:32am
Joe Bingham (mail):
Like a lot of you guys, I'm pretty upset by Kmiec's actions of last year, and it's tempting to see them as inspired by appointment-seeking, but that's probably not true, and it certainly doesn't accomplish anything useful to question his good-faith. He deserves some respect, even if I think he's made some terrible mistakes and rationalizations.
1.7.2009 9:49am
Joe Bingham (mail):
People are saying "scumbag," "moron," "whoring for a job," "devoid of... scruples," "despicable."

Maybe try "disappointing, frustrating, and unwise."
1.7.2009 9:54am
David M. Nieporent (www):
Sure, but bishops are no more an authority on what the 2nd A means than I. Why he would bring their opinion into it is bizarre,
Uh, not really. Did you guys bother to look at where that particular piece was published? It was in The Tidings, "the weekly newspaper of the Los Angeles Archdiocese."

Yes, the bishops' opinion is legally irrelevant, but this wasn't a legal brief.
1.7.2009 10:13am
Al Maviva:
Mentioning the USCCB's take on the 2d Amendment isn't bizarre because of the 1st Amendment, with which it has absolutely nothing to do

Other than being situated right next door to it and enacted contemporaneously, which old fuddy-duddies of the type Kmiec used to be think is somewhat important when attempting to construe a law where its meaning is not facially obvious.
1.7.2009 10:22am
Al Maviva:
Mentioning the USCCB's take on the 2d Amendment isn't bizarre because of the 1st Amendment, with which it has absolutely nothing to do

Other than being situated right next door to it and enacted contemporaneously, which old fuddy-duddies of the type Kmiec used to be think is somewhat important when attempting to construe a law where its meaning is not facially obvious.
1.7.2009 10:22am
Carl the EconGuy (mail):
I must have missed something. In all copies of the Constitution I've seen, the 2nd amd reads that the right of the people to bear arms shall not be infringed upon, but I can't find where it says "... until the probability of tyranny being reestablished has vanished." But, if that sentence really never was there, how can it be implied? Was it always hiding somewhere in the penumbras? What kind of a constitution is that, Professor Kmiec?
1.7.2009 10:23am
Thief (mail) (www):
My only explanation is that the real Prof. Kmiec is alive somewhere and managed to get the signature onto the Heller Brief before his Democratic-voting evil clone managed to intercept it.

I say you need to invite both Kmiecs to a panel. Find the one with the goatee, and kill him.
1.7.2009 11:15am
ronnie dobbs (mail):

People are saying "scumbag," "moron," "whoring for a job," "devoid of... scruples," "despicable."

Maybe try "disappointing, frustrating, and unwise."


If I wanted to be nice, I wouldn't use the Internet, now would I?
1.7.2009 12:11pm
strangerthanfiction (mail):
Jim Lindgren,

No switch by "Pulitzer-prize winning" historian Jack Rakove on any matter of Constitutional interpretation should surprize anyone. After all, in the book that made him a "Pulitzer-prize winning" historian (and possibly the reason why the book made him a "Pulitzer-prize winning" historian), he argues that the language of the Constitution does not need to "mean now what it meant then" since "nothing in the text of the Constitution literally constrains or even instructs us to read it as its framers or ratifiers might have done" (p. 368 of Original Meanings, First Vintage Books Edition, order of quotations reversed). Dr. Rakove does concede that the language of the Constitution "cannot be infinitely malleable" (Ibid.). However, he never tells us just how close we may approach infinity, leaving us to conclude that, for the most part, his position is that whatever he feels the Constitution should mean today is what it does mean today, regardless of what he felt yesterday.
1.7.2009 12:17pm
John Doe (mail):
Kmiec owes a further explanation. All he says is that "the additional study I am certain many of us did of all the materials filed in the case" changed his mind -- 180 degrees, apparently.

So what were these "materials" that managed to produce a 180-degree-swing in the opinion of a man who has been a prominent constitutional law professor for decades? He hadn't seen these "materials" before, despite his decades of expertise? Let's hear some more about these "materials."
1.7.2009 12:20pm
Allan L. (mail):
"the additional study I am certain many of us did of all the materials filed in the case" changed his mind --

Yesterday was a good day for an Epiphany.
1.7.2009 12:30pm
Joe Bingham (mail):
Yesterday was a good day for an Epiphany.

I figured it out! He's not gunning to be ambassador to the Vatican, or to be a judge. He's gunning for a chapter in the sequel to Portrait of the Artist as a Young Man, or maybe a short in Dubliners II!
1.7.2009 12:42pm
therut (mail):
Also Catholic dogma is not aganist self-defense. It would be immoral not to defend your life or those of another innocent person. He knows this. Just b/c the bishops in this country stray from the teachings of the Church does not mean an honest person has to leave the farm with them. Quite the opposite.
1.7.2009 12:43pm
wyswyg:
Kmiec, describing what he now says is the true meaning of the 2nd Amdt;


BYOG—see ya down at the square, Festus.



Our judicial idols not only have feet of clay, that substance extends all the way up to their shrunken heads.



try "disappointing, frustrating, and unwise"



All right. I find the opinions of this despicable scumbag whoring-for-a-job moron to be disappointing, frustrating, and unwise.
1.7.2009 2:04pm
zippypinhead:
When I first read Dave's post, I assumed Professor Kmiec probably just got a call asking if he'd like to sign onto a star-studded amicus brief in the S.Ct. case of the year that would merely flesh out the legal-historical record. And that he'd have to do exactly no work in exchange for the privilege. He immediately said "sure," thinking this would give him a great cred to snare some media appearances and op-ed bylines. And then he forgot to read the pre-filing draft they sent him as a courtesy. By the time he realized what the brief actually said it was too late, so he just went forth and spouted off anyway, hoping either that nobody would notice, or that his concocted excuse would pass the laugh test.

In other words, he was lazy and careless. Something he's been accused of before, I understand.

Now you guys have me wondering if he was trying to be more strategic... Fortunately, shining a bit of light on this issue won't enhance his chances at snaring some position he covets that requires Senate confirmation.
1.7.2009 2:12pm
SeeTheOtherSide:
He abandoned the core of orthodox Catholicism and the Magisterium teaching on Abortion and Life Issues, all for political expediency. This would be a matter of utmost importance for those who have true faith in the Catholic Church and are practicing Catholics in good standing. But standing himself on his head apparently did not bother him in the leasr, nor did his continued lies and deliberate mis-statements about Catholic dogma regarding those Life/Abortion teachings of the Church, despite multiple corrections from more orthodox bishops, like Archbishop Chaput. Yet he continues to falsely claim he is "Catholic" (maybe in words only) and instead clings to the blasphemous gay/liberal socialist parts of the Church -- the very parts that are destroying the Church from within. Its no surprise to see him published in the Diocese of LA, headed by the pedophile protecting, liberal, heterodox Mahoney of LA.

So why should a turnabout on this be any surprise? Prof Kmiec apparently no longer holds fast to any fundamentally orthodox (in the religious sense) principles if he is given sufficient inducement, like a prominent position in a political campaign. Deeds, not words, as it says in the Gospel.

Kmeic has shown that he indeed has a price, and once sold for one thing, he will always be assumed for sale on others.

Given the above, it is not difficult to imagine that sufficient inducement for Prof Kmiec to betray any remaining principle would be approximately <i>30 pieces of silver</i>.
1.7.2009 3:48pm
Sara:
The religious bigotry of much of the commentary, above, is truly astounding. So, you don't like his religion -- you guys, are evidently not fit to even discuss constitutional law.
1.7.2009 4:54pm
James Lindgren (mail):
Stranger,

Thanks for the quote from Rakove. Actually, that was close to his reasoning (as I may imperfectly recall it): The 2d amendment can be stretched but there is a limit; an absolute bar on private citizens owning guns would cross that line b/c the 2d A. is not infinitely malleable.

Jim Lindgren
1.7.2009 6:28pm
Fat Man (mail) (www):
Many scholars are much like lawyers you know? They'll argue whatever their client desires of them.


Yes, but a substantial retainer in hand is a much weightier consideration than truth.
1.7.2009 8:29pm

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