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 See also Slate, March 17, 2008 (Second Amendment's anti-tyranny purpose is obsolete, and the Court should not create a new purpose for the Amendment).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.
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.....
Nick
He abandons all his beliefs one after another.
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.
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?
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.
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.
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)
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.
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
I see that being an illogical moron is no bar to being a law professor. Not that I needed any reminder on that point.
In the spirit of the Holidays, I will only be billing Mr. Kopel for my second comment.
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.
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.
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.
Maybe try "disappointing, frustrating, and unwise."
Yes, the bishops' opinion is legally irrelevant, but this wasn't a legal brief.
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.
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.
I say you need to invite both Kmiecs to a panel. Find the one with the goatee, and kill him.
If I wanted to be nice, I wouldn't use the Internet, now would I?
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.
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."
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!
Our judicial idols not only have feet of clay, that substance extends all the way up to their shrunken heads.
All right. I find the opinions of this despicable scumbag whoring-for-a-job moron to be disappointing, frustrating, and unwise.
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.
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>.
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
Yes, but a substantial retainer in hand is a much weightier consideration than truth.
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