In a brief order on today's order list the Supreme Court dashed the hopes of gun rights advocates who hoped to have two lawyers and additional time arguing their cause before the Supreme Court when it hears arguments in the historic case D.C. v. Heller March 18.
Without explanation, the Court denied the motion of Texas Solicitor General R. Ted Cruz for argument time on the side of Alan Gura of Gura & Possessky, who has argued the pro-Second Amendment position from the start of the case.
But the Court did agree to give Solicitor General Paul Clement 15 minutes to argue, in addition to the 30 minutes for each side in the case.
The Court's action can be read as a small but not insignificant victory for supporters of D.C.'s handgun control ordinance at issue in the case.
Cruz had argued to the Court that he should be heard on behalf of 31 states favoring a broad view of the Second Amendment, because Solicitor General Paul Clement's brief in the case is "contrary" to the position of gun rights supporters. While Clement supports an "individual right" view of the Second Amendment, he advocates a standard of review that critics say will allow too many gun regulations to stand. Clement also urged vacating and remanding the lower court ruling of the U.S. Court of Appeals for the D.C. Circuit in the case, the first ever to strike down a gun regulation on Second Amendment grounds. Walter Dellinger of O'Melveny & Myers, who will argue in defense of the D.C. handgun ban, had opposed the Texas motion, but supported Clement's request for added argument time.
It is very common for the Court to say yes to a request from the solicitor general for argument time as amicus curiae no matter where he stands. As for states, in recent years they have won argument time with greater frequency four times last term alone though this term the success rate has been lower. One factor working against Texas in the D.C. case is that states are not unanimous on the Second Amendment issue; New York, joined by Hawaii, Maryland, Massachusetts, New Jersey, and Puerto Rico, filed a brief on the gun control side.
So, even though Clement's brief lends support to both sides, the net effect of today's Court action is that the justices will hear 45 minutes of advocacy from those who want the lower court ruling eliminated, and 30 minutes from those who want it upheld.