Good Old Doug Kmiec

Ah, our friend Doug Kmiec has recently been revealed to have given yet more examples of the pattern that made him famous during the Obama campaign.

The law professor David Kopel points out that, in the Heller gun-control case, Kmiec signed the February 2008 amicus brief by “Former Senior Officials of the Department of Justice in Support of Respondent.” The Second Amendment, that brief declared,

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.

Of course, then, in March, he declared in Slate magazine that a decision finding an individual right to guns would transform the American Constitution “from a protection of negative to affirmative liberty at the point of a gun.”

And in July, he explained in Tidings that the death of his brother-in-law Michael sixteen years earlier had left him a firm supporter of gun control—and the Heller decision provided no reason to change his mind:

The long-winded rationalization given supplies no persuasive reason for misconstruing the Second Amendment to support access to handguns well beyond any militia service or purpose. As Justice Stevens wrote in dissent: “The court’s announcement of a new constitutional right to own and use firearms for private purposes upsets the settled understanding.” It also disregards the long-standing teaching of the American Catholic bishops that “handguns be effectively controlled and eventually eliminated from our society.”

No, neither law nor moral instruction justifies a newly-minted and expanded gun right that inevitably will contribute to other families losing their “Michaels.”

As it happens, I hold no strong views on either side of the question, which at least distinguishes me from Doug Kmiec, who seems to hold strong views on both sides. As David Kopel remarks, “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 explanation 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.”

But, then, that’s our Doug.