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Walter Dellinger estimates that when his firm, O’Melveny & Myers, briefs and argues a Supreme Court case on a pro bono basis, it usually eats up about $500,000 worth of otherwise billable hours. But when the District of Columbia called on him in early January to ask him to defend its handgun laws in the Second Amendment case of D.C. v. Heller, Dellinger did not hesitate. He said yes, even though he now estimates that the cost to his firm in lost fees will be “well over $1 million.” Not only is it the first case in 69 years in which the Court may squarely address the meaning of the right to “keep and bear arms,” its resolution will write history and could spill into the presidential campaign as a flash point over gun rights and judicial power. But the litigation has already taken enough surprising twists and turns to require a flow chart. What once was a case being handled mostly by in-house counsel in D.C. government suddenly became a project divided between Dellinger’s O’Melveny and two other major law firms, all working pro bono. On the pro-gun rights side, by contrast, the case is still being controlled by Alan Gura, a dedicated small-firm lawyer practicing in Alexandria, Va. He launched the challenge against D.C.’s gun ordinance on his own six years ago, funded only meagerly by Cato Institute scholar Robert Levy. Gura says he has not been paid for the case since 2003, but he has carried the ball far down the field, persuading the U.S. Court of Appeals for the D.C. Circuit last year to rule that the Second Amendment protects an individual right to bear arms that is violated by D.C.’s handgun ban — the first time a gun law has been struck down on Second Amendment grounds. Gura has also blocked interference from the powerful National Rifle Association, a natural ally. At an earlier stage of the case, Gura accused the association of trying to sabotage his lawsuit and elbow him aside. Now, says Cato’s Levy, “whatever abrasions there were with the NRA have been healed.” The NRA filed a brief supporting Gura. As for fees, Gura, too, estimates his billable hours at more than $1 million, which he hopes to extract from the D.C. government if he wins. “Defending the Bill of Rights? Priceless,” he says. Dellinger is tackling preparations for the March 18 oral arguments with typical gusto, immersing himself in the rich history of the Second Amendment. That history leads him to acknowledge that it does announce an individual right to bear arms. But, he says, it is a right that is activated only within a state militia — in the same way that an individual right to be a juror, for example, only has meaning when joined by others to form a jury. A team of six partners and associates is aiding Dellinger, and they, too, are relishing the case. “It’s the kind of case where you wake up in the middle of the night with a new thought, and you write it down,” partner Matthew Shors says. For now, the large pile of briefs in the D.C. gun case — more than 60 briefs total have been filed on both sides — sit on the floor of Dellinger’s I Street office, under a table that holds the briefs in two other Supreme Court cases he will argue first, in the next two weeks. A busy schedule by any measure. But the former acting solicitor general already wishes he could argue the gun case, not for the allotted 30 minutes, but for two days, as was done in the early days of the Court. No one doubts that Dellinger, also a law professor at Duke University, could fill the time. FRIENDLY FIRE Until last month, Dellinger was not expecting to be quite so busy. The city already had a top-notch Supreme Court advocate working in the D.C. attorney general’s office: Alan Morrison, former head of the Public Citizen Litigation Group, who had joined as special counsel. Morrison had even done a moot court in anticipation of arguing the case. And from the beginning, Supreme Court specialist Thomas Goldstein and a team of lawyers from his firm, Akin Gump Strauss Hauer & Feld, was assisting the District with some of the basic work that led the city to take the case to the Supreme Court. Carter Phillips of Sidley Austin also helped the city, though he withdrew because of a client conflict. O’Melveny had done some pro bono work for D.C. and its new mayor, Adrian Fenty, in the past, and offered to draft a friend-of-the-court brief in the gun case. But after unrelated disputes with Fenty counsel Peter Nickles, Morrison’s boss, then-Attorney General Linda Singer, announced her resignation in December. Soon Morrison, viewed as a Singer loyalist, was being shown the door as well. Their last official workday was Jan. 4, the day the city’s merits brief was due at the Court. The sidelined Morrison says city officials are freezing him out of continued involvement in the case. D.C. Solicitor General Todd Kim, who is coordinating the city’s legal effort even as he is out on paternity leave, says only that “Alan is no longer part of the team.” Now Dellinger is working not only with Akin Gump — which he credits for playing a “critical role” in the case — but with Covington & Burling, the firm where Nickles used to work. At Covington, longtime partner Robert Long is assisted by Jonathan Marcus, a fresh recruit from the solicitor general’s office. Irv Gornstein and Sri Srinivasan, also recent alumni from the SG’s office, are on Dellinger’s team at O’Melveny. Their former boss, Solicitor General Paul Clement, scrambled the Heller case himself last month when he filed a brief that notably failed, on its cover, to mention which side he was on — a highly unusual omission. There was a reason. The brief did embrace the pro-gun rights view of a broad individual right to bear arms, a position long taken by the Bush administration. But Clement infuriated gun rights proponents by defending the numerous federal laws restricting possession of guns, and arguing for a relaxed standard of review that would allow many gun laws to be upheld. Most of all, Clement is under attack for suggesting that the D.C. Circuit ruling, instead of being affirmed, should be vacated and the case remanded. Clement did not respond to questions about the brief and whether the White House was consulted before the brief was filed. In private meetings in December, Clement and other lawyers in his office did, however, hear arguments from both sides of the case seeking his support. One possible sign of White House displeasure with the brief came Feb. 8, when Vice President Dick Cheney signed on at the last minute to a brief filed in support of Gura by 55 senators and 250 House members. It explicitly stated that “no purpose would be served” by remanding the case, as Clement suggested. The Court, which gives considerable weight to the views of the solicitor general, may view Cheney’s move as a snub aimed at Clement. CAN YOU SPARE A COUPLE MINUTES? Clement’s perceived betrayal of a pro-gun rights position first taken by then-Attorney General John Ashcroft in 2001 has led to the latest dispute to beset the case of D.C. v. Heller. Gura announced he would oppose any effort by Clement to take part of the 30-minute argument time allotted to him on March 18. It is routine for advocates who have the support of the solicitor general to cede 10 minutes to a lawyer from the solicitor’s office. But Gura says, “He is adverse to us. He wants the case to go away.” Instead, Gura has agreed to give 10 minutes to Texas Solicitor General R. Ted Cruz, who filed a brief on behalf of 31 states that favor Gura’s view of the Second Amendment. Cruz called Clement’s position “indefensible.” It is up to the high court whether Cruz will get argument time. On Feb. 14, yet another wrinkle was added. Stephen Halbrook, who wrote the brief joined by Cheney and the members of Congress, indicated he too wanted argument time in part to counter Clement’s views — which would have led to the unusual specter of two lawyers arguing different positions on behalf of different parts of the executive branch. Halbrook withdrew his idea when he realized the deadline had passed for seeking more argument time. For his part, Clement had already offered the Court another solution: lengthen the argument beyond an hour, so he can make his case without abbreviating anyone else’s time. Formal arguments in the case have yet to begin, but the Court has already gotten a taste of how contentious the litigation in D.C. v. Heller will be.
Tony Mauro can be contacted at [email protected].

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