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 See also Slate, March 17, 2008 (Second Amendment's anti-tyranny purpose is obsolete, and the Court should not create a new purpose for the Amendment).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.