Thursday, the US Supreme Court delivered the most significant victory to law-abiding gun owners in almost a generation (Supreme Court Rules You Can’t ‘Bear’ Arms Unless You Can Carry Them for Self-Defense). In New York State Rifle and Pistol Association vs. Bruen, the Supreme Court demolished a pseudo-jurisprudence that has grown up around the Second Amendment that treats the right to possess and carry weapons as a curious artifact rather than a core American value.
Former US Solicitor General Paul Clement headed the litigation team for the Americans in this case. Clement has extensive and successful Second Amendment appellate experience; he represented the US government’s position in District of Columbia vs. Heller. His expertise was so sought after that the prominent law firm of Kirkland & Ellis essentially bought the law firm where he was a partner in 2016, partly because of his high profile in Second Amendment litigation.
Ordinarily, a Big Law firm that hired a lawyer whose practice was largely Second Amendment cases would expect the lawyer to continue representing those clients. And if that lawyer won a precedent-setting case before the Supreme Court, that would be a cause for celebration. Not today.
A 6-3 victory at the Supreme Court vindicating a constitutional right is usually cause for congratulations, but not these days at Kirkland & Ellis, the giant white-shoe law firm. The firm has rewarded partner Paul Clement for his triumph Thursday in the big New York gun-rights case (see nearby) by telling him to drop his gun clients or leave the firm.
As Mr. Clement and his litigation partner, Erin Murphy, explain nearby, they’re leaving the firm rather than dump their clients. That’s the honorable and ethical decision.
As a partnership, Kirkland & Ellis has to look to its bottom line. If they think a particular practice will cause them to lose other clients, they have a duty to their partners to consider withdrawing from that line of business. I’m sure the tobacco industry faced similar issues in the latter stages of the litigation that crippled that industry.
The Kirkland & Ellis demarche to Clement requiring him to abandon his clients or leave the law firm is particularly troubling. Clement was involved in defending a core Constitutional right in a climate where RightThinking™ people disagree with this right. If there was ever a time when an ethical (lolol) law firm should take a case, it should be when an unpopular right or freedom is under assault. The craven cowardice of Kirkland & Ellis, in this case, is not unprecedented. The same thing happened during the losing battle Western Civilization fought against homosexual marriage. Law firms dropped cases defending actual marriage. Lawyers who litigated on behalf of sanity were ostracized.
While we must acknowledge that Kirkland & Ellis is in business to make money for their partners, we can’t be blind to what this means. It means that the number of lawyers willing to take on Second Amendment cases will shrink, and the quality of those lawyers along with it. It means that when men like Clement retire, there will not be a generation to succeed them. It means that young and talented lawyers will be reluctant to enter a field of practice that effectively limits their economic prospects.
When major appellate firms who should have a duty to defend the Constitution become so woke and fearful that they will not take unpopular cases, it is a dangerous time for us all.
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