Another Day, Another Kmiec 180
Apparently Doug Kmiec’s change of heart last year was not limited to topics pro-life. As noted at the Volokh Conspiracy, he also reversed his position on the recent Heller decision, which overturned the DC handgun ban, in a span of about five months.
In February, Prof. Kmiec joined an amicus brief to the Court which argued “the [Second] 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.” When the Court affirmed the lower court decision overturning the ban as the amicus brief he joined suggested, Kmiec took to the pages of Slate to criticize the decision, arguing that the Heller majority misconstrued the Second Amendment, and their ruling had no basis in “Constitutional text, history, and precedent”. Here is Kmiec’s explanation for the switch as provided to the popular Volokh Conspiracy legal blog:
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.
Not quite as ridiculous as his asssertion that Barack Obama was the real pro-life candidate, but close. In the words of law professor David Kopel at the Volokh Conspiracy, “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.”
I guess pro-lifers have company in wondering what exactly happened to Doug Kmiec.