Yesterday should have been a triumphant day for Paul Clement and Erin Murphy. The pair won a landmark victory at the Supreme Court when justices ruled 6-3 in favor of their clients in New York State Rifle & Pistol Association v. Bruen, striking down the state’s unconstitutional “may issue” carry laws. But yesterday the pair also learned that the other partners at Kirkland and Ellis, the law firm where both work, apparently weren’t too happy about the win and told the two attorneys they had a choice to make: ditch their Second Amendment-related clients or leave the firm.
So, as of yesterday, Clement and Murphy are free agents.
This isn’t the first time we have left a firm to stick by a client. What makes this circumstance different is that the firm approved our representation of these clients years ago, and dropping them would cost the clients years of institutional memory. More remarkable still, in one of the cases we were asked to drop, we prevailed in the Supreme Court on Thursday. Those who object to the representation are thus taking issue with the Constitution as interpreted by a majority of the high court.
The Constitution is the foundation of American liberty, but it isn’t self-executing. It depends on lawyers who are willing to take on controversial matters and on judges who are able to hear the best possible arguments from both sides. The Supreme Court’s jurisdiction is limited to cases and controversies, which means the justices can’t uphold rights without an advocate to make the argument.
The American legal profession’s willingness to take on and stand by controversial clients has made our system of justice the envy of the world. The profession shouldn’t back down from its willingness to tackle the most divisive issues. We certainly won’t.
Our decision, then, has little to do with the issues in this case and everything to do with the underlying principle. We would make the same choice for any of our clients. The scope of the Second Amendment and the plague of gun violence are more controversial than the Federal Arbitration Act or even religious speech. But that makes resisting the pressure to drop an unpopular client all the more crucial. The problems posed by the spate of recent violent gun crimes are real. But the solution isn’t to fire clients who have just vindicated a fundamental constitutional right. We are sticking with our clients.
I’ve had the opportunity to interview Clement a few times over the years as well as read a number of his briefs in 2A cases (including Bruen) and I’ve always been impressed with his legal acumen. I’m equally impressed by the conviction on display here on the part of both attorneys. It would have been easy to walk away from Second Amendment litigation and to abide by the wishes of the law firm where they work, especially in a town so hostile to the right to keep and bear arms as Washington, D.C. Clement and Murphy would have probably elevated their social standing by doing so, but instead they chose to stand by their clients and their desire to seek justice before the highest court in the land.
Clement and Murphy were not only the lead attorneys in the Bruen case, they’re also involved in two other cases that are pending in conference at the Court. Clement is the counsel of record in two separate magazine ban cases, one from California and the other out of New Jersey. It’s anticipated that the Court will act on those cases when orders are released next Monday, though whether or not they accept either case or remand them back down to the appellate courts with instructions to follow the “text and history” test laid out by Justice Clarence Thomas in the Bruen opinion remains to be seen. Either way, these cases are still very much live issues, and I’m glad to know that the plaintiffs will continue to be represented by the pair (and a host of other great attorneys as well).
The decision by Kirkland and Ellis to make Clement and Murphy choose between representing 2A clients or continuing to work at the firm does demonstrate a big problem for 2A activists, however. Major gun control groups like Everytown and Giffords not only have their own in-house litigation teams, they regularly receive the help of white-shoe firms offering their services free of charge. Second Amendment organizations, meanwhile, have to worry about the attorneys they hired possibly getting canned from their place of employment thanks to partners’ anti-gun attitudes or willingness to bend a knee to the woke mob.
We have the better argument, and we’ve got some great attorneys, but Clement and Murphy’s tale is a grim reminder that the gun control lobby is trying to do everything they can to turn any and every supporter of the right to keep and bear arms into social and professional pariahs. The fight for our Second Amendment rights is also a defense of our First Amendment freedoms of expression and association, and that won’t change no matter how many great decisions are handed down by the Supreme Court.