Arguing Over Argument Time in D.C. Gun Case

The lawyer who filed a brief for members of Congress and Vice President Dick Cheney in the pending Second Amendment gun rights case at the Supreme Court yesterday initiated, and then withdrew, an effort to seek time to join other parties at the podium when the case is argued March 18.

If the request for argument time had gone forward, it would have been a highly visible rebuke of Solicitor General Paul Clement, who has requested 15 minutes of time of his own in the case D.C. v. Heller. With Cheney's participation in the amicus curiae brief, it would have meant that two lawyers would be advancing two different positions on behalf of the executive branch — something the justices themselves might have frowned on.

Stephen Halbrook, the longtime gun rights advocate who wrote the amicus brief filed Feb. 8, confirmed this development this morning and said he withdrew the idea of seeking argument time only when he realized the deadline had passed for making such a request. He declined to say whether any of his clients — 55 senators and 250 members of the House of Representatives who favor gun rights, as well as Cheney — had expressed second thoughts about rising to argue, in effect, against the solicitor general.

Clement incurred the wrath of gun rights advocates by filing a brief in the case which, while embracing an individual rights view of the Second Amendment, argued that the lower court ruling that struck down D.C.'s handgun ban should be vacated and the case remanded under a standard of review that critics say would allow too many restrictions on gun rights to stand. Alan Gura of Gura & Possessky, who will be the main lawyer arguing against the D.C. law, announced that if Clement wanted argument time, it should not come out of his allotted 30 minutes, because Clement's position is "adverse" to his. Gura instead has agreed to let Texas solicitor general R. Ted Cruz to take 10 minutes of his time to argue on behalf of 31 states that agree the ruling by the U.S. Court of Appeals for the D.C. Circuit should be affirmed. Cruz's motion for argument time is pending before the justices.

Halbrook today did not shy away from the suggestion that he wanted argument time as much to counter Clement's position as to oppose D.C.'s defense of its handgun ban, which will be handled by Walter Dellinger of O'Melveny & Myers. "That message is pretty loud and clear," said Halbrook, a sole practitioner in Fairfax, Va. Halbrook said he does not like the idea that if Clement's motion is granted, those seeking to eliminate the D.C. Circuit decision in effect will have 45 minutes to argue, and those supporting affirmance will only have 30.

Comments

[Big Boy]

Clements gets "special treatment" because he is part of the Supreme Court "insiders" group. It is unfair for the court to allow one "side" 45 minutes and the other side only 30. It looks like favoritism and undercuts the appearance that "Justice" is dispensed evenhandedly at the Supreme Court. It will really weaken the perceived legitimacy of any anti-individual or empty-individual right decision among the 3/4 of Americans who still believe the Law stands for something other than unfettered judicial choice.

[Jack]

I am not a lawyer, so this may be naive but why does the Clement get time?
This is a case where the Court specifically asked a question on the 2nd Amendment
Article V says the Congress proposes amendments and the Stares ratify. The Executive has nothing to do with it. Once it is a law, the Executive through DoJ enforces the Constitution. If anyone should get time other than Dellinger and Gura it should be Cruz for the States and Halbrook for the Congress.

[Adam]

"It would have meant that two lawyers would be advancing two different positions on behalf of the executive branch."

Would it? Cheney signed the brief in his capacity as President of the Senate; he didn't endorse the brief "on behalf of the executive branch."