Posted by David Kopel:
Kmiec v. Kmiec regarding Heller:
http://volokh.com/archives/archive_2009_01_04-2009_01_10.shtml#1231289178
Douglas Kmiec has sharply criticized the majority opinion in District
of Columbia v. Heller. E.g., [1]Slate, July 8, 2008 (majority opinion
amounts to unjust rule by judicial fiat); [2]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
[3]Slate, March 17, 2008 (Second Amendment's anti-tyranny purpose is
obsolete, and the Court should not create a new purpose for the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.
References
1.
http://www.slate.com/blogs/blogs/convictions/archive/2008/07/08/what-the-heller-is-only-the-supreme-court-s-liberty-enhanced.aspx
2. http://www.the-tidings.com/2008/071108/kmiec.htm
3.
http://www.slate.com/blogs/blogs/convictions/archive/2008/03/17/positive-liberties-at-the-point-of-a-gun-or-constitutional-obsolescence.aspx
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