Supreme Court of the United States











Thank you for agreeing to serve as a judge for the oral arguments of prospective moot
court staff members at Touro Law Center’s Bainbridge Moot Court Competition. This was a
closed universe problem and competitors used only sources mentioned in the lower court
The problem is set in a fictional jurisdiction: events of the problem have occurred in the
State of Tourvania. The Second Amendment claim was originally filed in U.S. District Court for
the District of Tourvania and went up on appeal before the fictional U.S. Court of Appeals for
the Eighteenth Circuit; an appeal from the judgment of the U.S. Court of Appeals for the
Eighteenth Circuit is now before the U.S. Supreme Court.
As a judge, you are not expected to render a decision to the students’ arguments. Please
do, however, ask questions during the students’ arguments.
In this case Respondent Jenna Sommer has sued Vincent Cabrera, acting in his official
capacity as Chief Licensing Officer of the State of Tourvania and The Licensing Division of the
State of Tourvania for violating her Second Amendment right to bear arms.
Specifically, Respondent, a mother of twin 6-year-old girls, who were all attacked while
riding the Bermanland ferry across the Tourvania river, alleges that Petitioners’ denial of her
Handgun License Application under Tourvania Criminal Code § 20-23 violated her Second
Amendment right.
The District Court for the District of Tourvania granted Petitioners’ motion for summary
judgment. Subsequently, the Eighteenth Circuit rendered judgment in favor of Respondent.
Petitioners appealed, and the Supreme Court granted certiorari.
Competitors will have a total of 15 minutes to argue. Petitioners’ counsel may reserve
one or two minutes for rebuttal.


Whether Section 20-23 of the Tourvania Criminal Code infringes on its citizens’ Second
Amendment right to keep and bear arms when it prevents individuals from carrying firearms in
or on, inter alia, “[a]ny vehicle owned or under the control of federal, state, or local government
for public transportation.”

Procedural History

Jenna Sommers (Respondent-Plaintiff) filed this action in the United States District Court
for the District of Tourvania alleging that her Second Amendment right to bear arms was
infringed upon when the Chief Licensing Office of the State of Tourvania and The Licensing
Division of the State of Tourvania (Petitioner) denied her Handgun License Application. The
district court decided the case on June 28 2022, and granted the motion for summary judgment
filed by Defendant-Petitioners, Vincent Cabrera, acting in his official capacity as Chief
Licensing Officer of the State of Tourvania and The Licensing Division of the State of
Tourvania, holding that Respondents Second Amendment rights were not violated. The court
explained that Section 20-23 of Tourvania’s Criminal code does not burden any constitutional
rights of the Respondent.
Respondent appealed the district court’s decision to the United States Court of Appeals
for the Eighteenth circuit. The court of appeals hear arguments and decided the case on July 10,
2022. The court vacated the district court’s order granting summary judgment and held that
Tourvania Criminal Code Section 20-23 prevented law-abiding citizens from carry weapons in
locations different from those that have been historically regulated. Further, the court explained
that State of Tourvania has not met its burden of proving that its firearm regulation is related to
sensitive location that has been historical regulated.
Following the judgement of the Court of Appeals, Petitioners petitioned the United State
Supreme court for a Writ of Certiorari. This Court granted the petition for Writ of Certiorari to
the United States Court of Appeals for the Eighteenth Circuit. The appeal has been set for
argument in the ______ term.

Statement Of Facts

Plaintiff is a 29-year-old single mother of twin 6-year-old girls. Plaintiff has lived
Plaintiff’s entire life in the county of Bermanland, in the State of Tourvania. Every weekend,
Plaintiff rides the Bermanland ferry across the Tourvania River to the county of Lagonville,
where the father of Plaintiff’s twin daughters resides. Plaintiff drops them off at his house every
Friday, then picks them back up every Sunday. This has been their arrangement as per their
separation agreement for the past three years. About five months ago, Plaintiff was riding the
ferry with Plaintiff’s daughters and as they were disembarking the ferry, a man approached them
from behind. The man pressed a knife up against Plaintiff’s back and demanded that Plaintiff and
Plaintiff’s daughters turn over all their money and electronic devices. Plaintiff, in an effort to
defend against the assailant, shoved the man, but the man jabbed at Plaintiff with the end of his
blade stabbing Plaintiff in the shoulder. The assailant again demanded that Plaintiff hand over all
Plaintiff’s belongings or Plaintiff’s daughters would be stabbed next. Plaintiff threw all

demanded belongings at the man’s feet and told him to take everything but plead with him to not
hurt Plaintiff’s daughters. The man ran off with Plaintiff’s purse containing over two thousand
dollars and other valuables, such as Plaintiff’s cell phone, and Plaintiff’s daughters’ tablets.
The Bermanland Ferry is owned, operated, and under the control of the State of
Tourvania’s Department of Transportation, which maintains armed state police officers aboard
all their vessels and at their ports. However, because this occurred as Plaintiff was getting off the
ferry the man was able to escape before any of the ferry’s law enforcement officers could stop
him. Immediately following the incident, Plaintiff approached two officers who assisted Plaintiff
in getting medical attention. Plaintiff was examined at the site by paramedics who found that the
laceration on Plaintiff’s shoulder was a non-life-threatening flesh wound only requiring ordinary
sutures. Plaintiff filed a police report, but the investigation was inconclusive. Plaintiff believes
the police officers heard Plaintiff’s screams, but they did not attempt to investigate further. As a
result of the incident Plaintiff’s daughters were reluctant to ride the ferry, which was the most
practical way for them to get to their father’s house. This contributed to additional problems
between Plaintiff and the ex-husband. Additionally, Plaintiff has felt extremely vulnerable, even
when traveling without Plaintiff’s daughters. Plaintiff believes that Plaintiff must be able to
protect Plaintiff’s family more effectively.
As a result of the assault, Plaintiff sought for a concealed-carry pistol license with the
state’s License Division in order to better defend Plaintiff when Plaintiff and Plaintiff’s
family resumed riding the ferry. Plaintiff is at least 21 years old, has never been convicted of a
felony, and is a resident of Tourvania, all of which are prerequisites for obtaining a license. The
application requires the applicant to enumerate some of the places they intend to carry their
firearm. In Plaintiff’s application, Plaintiff stated that Plaintiff would carry the weapon while
riding the Bermanland Ferry. The License Division has the authority to deny an application if the
answers provided do not comport with the State’s laws. The License Division denied Plaintiff’s
application because Plaintiff intended to carry the firearm on a state-operated ferry which is in
direct contravention of Tourvania Criminal Code § 20-23. Section 20-23 is annexed infra:
Tourvania Criminal Code § 20-23 – Criminal Possession of a Firearm in a Sensitive Location
1) A person commits the offense of criminal possession of a firearm, regardless of licensure
status, if the person intentionally, knowingly, or recklessly has on their person a firearm
in a sensitive location.
2) For the purposes of this section a sensitive location shall mean:
a) a school, school buses, or anywhere school activities are taking place,
b) at polling places, during elections, or during early voting,
c) in court buildings or offices,
d) aboard aircraft and in airports, or
e) any vehicle owned or under the control of federal, state, or local government for
public transportation.
3) This section shall not apply to:
a) federal, state, or local law enforcement who are qualified to carry a firearm in
their official capacity,
b) security guards who are qualified to carry a firearm in their official capacity,
during their work hours, as such a security guard, or
c) persons who are designated peace officers.
Following the denial of Plaintiff’s application, Plaintiff filed a petition for reconsideration
with the Licensing Division. In the petition for reconsideration, Plaintiff attached the data from

the State’s reported assaults which showed an average of three hundred sixty-five (365) assaults
per year on its ferries. Plaintiff’s petition for reconsideration was denied.
Respondent subsequently filed suit under 42 U.S.C. § 1983 against Petitioners in the U.S.
District Court for the District of Tourvania in May 2022.


District of Columbia v. Heller, 554 U.S. 570 (2008)
Respondent, Dick Heller, is a D.C. special officer authorized to carry a handgun while on
duty. District of Columbia v. Heller, 554 U.S. 570, 575 (2008). He applied for a registration
certificate for a handgun that he wanted to keep at home, but the district refused. Id. Respondent
filed a lawsuit in federal district court on Second Amendment grounds, to enjoin the city from
enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits
the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar
as it prohibits the use of functional firearms within the home. Id. at 575-76. The District Court of
the District of Columbia denied Heller’s application for a certificate of registration and the Court
of Appeals for the District of Columbia reversed the decision on the grounds that the Second
Amendment grants an individual the right to bear arms. Id. at 576 (citing Parker v. District of
Columbia, 478 F.3d 370, 395, 399-401 (D.C. Cir. 2007)).
The Supreme Court held that the ban on handgun possession in the home violates the
Second Amendment as does its prohibition against rendering any lawful firearm in the home
operatable for the purpose of immediate self-defense. Id. at 635. The term “to keep and bear
arms” was applied, then as now, to weapons that were not specifically designed for military use
and were not employed in a military capacity. Id. at 581.
 “Keep arms” – to retain; not to lose & to have in custody (keep arms = have weapons)
Keep arms was simply a common way of referring to possessing arms, for militiamen and
everyone else.
 “Bear arms” – To carry

McDonald v. City of Chicago, 561 U.S. 742 (2010)
Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson (Chicago petitioners)
are Chicago residents who would like to keep handguns in their homes for self-defense but are
prohibited from doing so by Chicago’s firearms laws. McDonald v. City of Chicago, 561 U.S.
742, 750 (2010). A City ordinance provides that “[n]o person shall . . . possess . . . any firearm
unless such person is the holder of a valid registration certificate for such firearm.” Id. (citing
Chicago Municipal Code § 8-20-040(a) (2009)). Like Chicago, Oak Park makes it “unlawful for
any person to possess . . . any firearm,” a term that includes “pistols, revolvers, guns and small
arms . . . commonly known as handguns.” Id. (citing Oak Park Village Code §§ 27-2-1 (2007),

27-1-1 (2009)). Chicago enacted its handgun ban to protect its residents “from the loss of
property and injury or death from firearms.” Id. The Chicago petitioners and their amici,
however, argue that the handgun ban has left them vulnerable to criminals. Id. at 751.
After our decision in Heller, the Chicago petitioners and two groups filed suit against the
City in the United States District Court for the Northern District of Illinois. Id. at 752. They
sought a declaration that the handgun ban and several related Chicago and Oak Park ordinances
violate the Second and Fourteenth Amendments to the United States Constitution. Id. The
District Court rejected plaintiffs’ argument that the Chicago and Oak Park laws are
unconstitutional. Id. In its opinion the district court refused to evaluate the subject of
incorporation in regard to the Second Amendment since the Supreme Court in Heller expressly
stayed away from the topic. Id. The Seventh Circuit affirmed the lower court decision. Id.
In a 5-4 decision, Justice Alito writing for the Court, held that the right to bear arms
under the Second Amendment is also applicable to the states through the process of selective
incorporation. Id. at 790. This is because the right to keep and bear arms in self-defense is
fundamental to our nation’s tradition and history. Id. at 790-91. Other Justices on the Court, such
as Justice Thomas, agreed that the Second Amendment did apply to the states, but not through
incorporation, but through the Privileges or Immunities Clause of the Fourteenth Amendment.
Id. at 806. One of the dissenting opinions, written by Justice Stevens, states that the Second
Amendment right pertain primarily to militias, not to private use. Id. at 856. The other dissent,
led by Justice Breyer, held that this is not a fundamental right that mandates incorporation. Id.

United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010)
In April 2006, the Pennsylvania State Police was notified by a confidential informant that
Marzzarella was involved in the sale of stolen handguns. United States v. Marzzarella, 614 F.3d
85, 87 (3d Cir. 2010). The next day, State Trooper Robert Toski, operating in an undercover
capacity, accompanied the informant to Marzzarella’s home in Meadville, Pennsylvania, where
Toski purchased a .25 caliber Titan pistol with a partially obliterated serial number for $200. On
May 16, Marzzarella sold Toski a second firearm and informed him that its serial number could
be similarly obliterated. Id. at 88. On June 12, 2007, Marzzarella was indicted for possession of a
firearm with an obliterated serial number, in violation of § 922(k). Id. Marzzarella moved to
dismiss the indictment, arguing § 922(k), as applied, violated his Second Amendment right to
keep and bear arms. Id. (citing District of Columbia v. Heller, 554 U.S. 570 (2008)).
The district court denied the motion, holding the Second Amendment does not protect a
right to own handguns with obliterated serial numbers and that § 922(k) does not meaningfully
burden the “core” right recognized in Heller–the right to possess firearms for defense of hearth
and home. Id. Moreover, it held that because § 922(k) is designed to regulate the commercial
sale of firearms and to prevent possession by a class of presumptively dangerous individuals, it is
analogous to several longstanding limitations on the right to bear arms identified as
presumptively valid in Heller. Id. Finally, the district court held that even if Marzzarella’s
possession of the Titan pistol was protected by the Second Amendment, § 922(k) would pass
muster under intermediate scrutiny as a constitutionally permissible regulation of Second
Amendment rights. Id.

The Third Circuit upheld the lower court decision by using a two-pronged approach as
suggested by the Supreme Court in Heller to Second Amendment challenges. Id. at 89. First, the
court evaluated whether the challenged law imposes a burden on conduct falling within the scope
of the Second Amendment’s guarantee. Id. If it does not, the inquiry is complete; however, if it
does, the court will then evaluate the law under some form of means-end scrutiny. Id. Therefore,
the Third Circuit determined that the threshold inquiry in this case was whether § 922(k)
regulates conduct (possession of an unmarked firearm in the home) that falls within the scope of
the Second Amendment. Id.
While engaging in this two-pronged analysis, the Third Circuit noted in its opinion that it
also treats this Second Amendment challenge in the same manner as First Amendment challenge.
Id. at 96. Since the actual possession of firearms was not prohibited and the regulation mainly
regulated the manner of, and conduct surrounding, possession, the court applied intermediate
(rather than strict) scrutiny to Mr. Marzzarella’s challenge. Id. at 97. Therefore, since the court
applied intermediate scrutiny, the next step of the analysis for the court was to see whether the
statute advanced an “important” or “substantial” governmental goal by the use of narrowly
tailored means to achieve that goal. Id. at 97-98.
The court held Marzzarella’s possession of an unmarked firearm in his home is
unprotected conduct (which would fail the first prong of the Heller analysis). Id. at 101.
However, even if this was protected conduct, the court stated in its opinion that § 922(k) passes
both intermediate. This statute passes intermediate scrutiny because law enforcement officials
have an interest in enabling the ready identification and tracking of weapons in order to “keep
firearms away from the persons Congress classified as potentially irresponsible and dangerous.”
Id. at 98 (citing Barnett v. United States, 423 U.S. 212, 218 (1976)). Additionally, the court held
that the statute only targets the possession of unmarked firearms (not the possession of all
firearms). Id. at 98-99. Therefore, since the statute only specifically targets the criminal behavior
of owning an unmarked firearm, it satisfies the narrow tailoring needed for intermediate scrutiny.
Id. at 99.
Furthermore, the court held that even if strict scrutiny was the proper standard to apply, §
922(k) would survive strict scrutiny as well. Id. In order to pass strict scrutiny, a statute must be
“narrowly tailored to serve a compelling state interest.” Id. (citing FEC v. Wis. Right to Life, Inc.,
551 U.S. 449, 465 (2007)). The court elaborated on the compelling state interest in disallowing
unmarked firearms by stating that
[t]he direct tracing of the chain of custody of firearms involved in crimes is one
useful means by which serial numbers assist law enforcement. But serial number
tracing also provides agencies with vital criminology statistics–including a
detailed picture of the geographical source areas for firearms trafficking and
‘time-to-crime’ statistics which measure the time between a firearm’s initial retail
sale and its recovery in a crime –as well as allowing for the identification of
individual dealers involved in the trafficking of firearms and the matching of
ballistics data with recovered firearms.
Id. at 100. Additionally, the court held that this statute is narrowly tailored to serve those
compelling interests (and therefore not overbroad as alleged by Marzzarella) because it targets
the conduct of obliterating the tracking number (the manner in which it is obliterated does not
need to be specifically addressed or targeted piecemeal by the statute). Id.

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)
These two appeals, consolidated for oral argument, challenge denials of declaratory and
injunctive relief sought in materially identical suits under the Second Amendment. Moore v.
Madigan, 702 F.3d 933, 934 (7th Cir. 2012). An Illinois law forbids a person, with exceptions
mainly for police and other security personnel, hunters, and members of target shooting clubs, to
carry a gun ready to use (loaded, immediately accessible—that is, easy to reach—and uncased).
Id. The appellants contend that the Illinois law violates the Second Amendment as interpreted in
Heller. Id. The Seventh Circuit heavily relied on the reasoning of the Supreme Court in both
Heller and in McDonald when coming to its decision. Id.
The Court in Heller held that the Second Amendment protects “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” Id. (citing District of Columbia
v. Heller, 554 U.S. 570, 635 (2008)). But the Supreme Court has not yet addressed the question
whether the Second Amendment creates a right of self-defense outside the home. Id. The district
courts ruled that it does not, and so dismissed the two suits for failure to state a claim. Id.
The District of Columbia had argued that “the original understanding of the Second
Amendment was neither an individual right of self-defense nor a collective right of the states, but
rather a civic right that guaranteed that citizens would be able to keep and bear those arms
needed to meet their legal obligation to participate in a well-regulated militia.” Id. at 935. The
Supreme Court rejected the argument. Id. Both Heller and McDonald do say that “the need for
defense of self, family, and property is most acute” in the home. Heller, 554 U.S. at 628
(emphasis added). However, that does not mean it is not acute outside the home. Id. (citing
McDonald v. City of Chicago, 561 U.S. 742, 767 (2010)). The Supreme Court has decided that
the amendment confers a right to bear arms for self-defense, which is as important outside the
home as inside. Id. at 942. For our English ancestors, a man’s home was his castle, and so he had
broad powers to defend himself there. Id. Once the Heller majority found that the Second
Amendment was personal, the conclusion that one could possess ready-to-use firearms in the
home for self-defense there makes sense in light of the home-as-castle history. Id. at 943-44.
The next step of the Heller analysis is to apply a means-end analysis. Here, the court in
Moore found that Illinois could only present a rational basis for the statute that limits the
ownership of guns to particular groups of people. Id. Therefore, since this statute could not
survive a heightened scrutiny analysis, and the court in Moore declined to engage in another
historical analysis of the fundamentality of the right to bear arms after the lengthy discussion in
Heller and McDonald, the court reversed and remanded the appellants convictions and held that
the statute was unconstitutional. Id. However, the court did allow the mandate to be stayed for
180 days so that the Illinois legislature could craft a more narrowly tailored gun statute with
reasonable limitations on gun ownership. Id.
The dissent in this case held that, while the importance of defending one’s home has been
entrenched in our nation’s history, it was reluctant to fully extend that right to publicly carrying
ready-to-use arms in public. Id. at 944. Even though the Second Amendment does allow the
public carrying of firearms in self-defense, the dissent further reasoned that treating Heller too
broadly could lead to trouble down the road when establishing, defining, and refining the Second
Amendment right to keep and bear arms. Id. Therefore, since the Second Amendment is vague as
to whether this right extends to the conduct by the appellants, the dissent held that the states (as
laboratories of democracy) are the best forums to handle these sensitive areas of the law.


The following is an outline of some of the stronger arguments for the parties on each
issue. Students may very well present different arguments or present in a format different from
those included here.
Since the appellate court ruled in favor of Jenna Summer, granting her claim on the
grounds that denying her Handgun Licensing Application was in violation of the Second
Amendment, The Licensing Division of the State of Tourvania and Vincent Cabrera are the
Petitioners and Jenna Summer is the Respondent. Only counsel for Petitioners will have the right
of rebuttal.


A. The right to keep and bear arms is not unlimited
a. The Second Amendment, by dint of the Fourteenth Amendment, limits the
ability of States “to devise solutions to social problems that suit local needs
and values.” McDonald v. City of Chicago, Ill., 561 U.S.742, 785 (2010).
b. Section 20-23 of Tourvania Criminal Code does not amount to an all-out
prohibition on possessing a handgun. Kachalsky v. Cnty. of Westchester, 701
F.3d 81, 94–95 (2d Cir. 2012).
c. Although Respondent has a serious security need, the Second Amendment
does not give individuals the right to “keep and carry any weapon whatsoever
in any manner whatsoever and for whatever purpose.” District of Columbia v.
Heller, 554 U.S. 570, 626 (2008).

B. Respondent has failed to demonstrate how Section 20-23 of Tourvania Criminal Code
severely burdens Plaintiff’s rights or the rights of any of the citizens of Tourvania,
a. In this case, the Respondent’s intention to keep and carry a firearm in a public
place does not amount to conduct protected under the Second Amendment
rights. Accordingly, Section 20-23 of Tourvania Criminal Code does not
impose a burden on conduct that is “within the scope of the Second
Amendment’s guarantee.” United States v. Marzzarella, 614 F.3d 85, 89 (3d
Cir. 2010).
i. The Second Amendment does not guarantee the right to possess a
firearm in any place whatsoever. Respondent cannot keep and carry a
firearm on any public place, including the Bermanland ferry.
b. Section 20-23 of Tourvania Criminal Code is crucial to limit “the danger
posed to public safety.” Kachalsky v. Cnty. of Westchester, 701 F.3d 81,
94–95 (2d Cir. 2012).

i. The Bermanland ferry, which is owned and operated by State of
Tourvania officials, is akin to a government building because its
structure is similar to the size and functions of a building. Further, the
ferry houses up to seven hundred (700) patrons per trip and is secured
by armed guards to protect its patrons. For the said reasons, allowing
riders to arm themselves is dangerous and unnecessary.


C. Section 20-23 of Tourvania Criminal Code “imposes a burden on conduct falling within
the scope of the Second Amendment’s guarantee”
a. The Second Amendment confers a right to bear arms for self-defense. Moore v.
Madigan, 702 F.3d 933, 942 (7th Cir. 2012).
i. Respondent needs a concealed-carry pistol in order to better defend
herself when she and her family resume riding the ferry. This is crucial
considering the incidence she had with an attacker at the ferry.
Accordingly, there is no reason to deny her the license.

D. Considering the Nation’s historical tradition of firearm regulation, the State of
Tourvania has impermissibly infringed on the core right of the Second Amendment..
b. The Trial Court only focused on the legality of the historical restriction on bearing
firearms in sensitive places.
i. When considering the historical restriction under the Second Amendment,
it is pertinent to perform an inquiry into each location the State of
Tourvania’s statute regulates, and not merely the legality of the restriction.
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, No. 20-843, 2022 WL
2251305 (U.S. June 23, 2022).
ii. The Petitioner has not considered whether the regulation is at all
effective in combatting the safety risks that passengers face on these
ferries. Historically, there has been an average of three hundred sixty-five
(365) assaults per year aboard ferries in the State of Tourvania.



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