SABA Idol
Program Summary: Mock Supreme Court Argument
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court of the United
States held that the Second Amendment establishes an individual right to possess firearms in the
home, including for self-defense. The five-to-four decision, authored by Justice Scalia, struck
down the District of Columbia’s laws banning handguns and requiring that all lawfully possessed
guns, such as rifles, be kept unloaded and disassembled or bound by a trigger lock. This was the
first time that the Second Amendment had been used successfully to invalidate a gun law. The
blockbuster ruling touched off a wave of litigation across the country over gun rights, and
remains one of the Roberts Court’s most controversial decisions.
Heller is notable not only for its result, but also for its reasoning. The Second Amendment
provides that “A well regulated Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed.” The parties—and later the majority
and dissents—disagreed sharply over the meaning of these words, deploying dictionaries,
lengthy historical analysis, and policy arguments to support their positions regarding whether the
Second Amendment protects an individual right apart from the ongoing need for a citizens’
militia, and whether the District’s gun restrictions imposed an undue burden upon that right.
The majority denoted the first clause of the amendment, describing the need for a wellregulated militia, “prefatory”—and the second clause “operative.” Holding that the clauses
function essentially independently, the majority concluded that the right to keep and bear arms
must encompass an individual right to possess such arms for traditionally lawful purposes.
Relying heavily on the role that firearms played in society when the Second Amendment was
drafted, the majority determined that self-defense qualified as a traditional lawful purpose.
Because both the handgun ban and the trigger-lock rule burden the principal methods by which
gun owners seek to protect themselves, the Court struck them down as unconstitutional. The
Court did not, however, define a level of constitutional scrutiny for Second Amendment
challenges, leaving that question for a future case.
Heller raises important questions about gun rights and constitutional interpretation more
generally. For example, should courts determine the meaning of constitutional provisions by
attempting to establish their original meaning? What happens if the historical record is unclear,
or conflicted? When should history give way to an acknowledgment that circumstances have
changed? And of course the ultimate question: how much leeway does the Constitution give
governments to regulate gun ownership and use?
We’ll explore these questions in greater detail as two Supreme Court advocates, Pratik Shah
of Akin Gump Strauss Hauer & Feld LLP, and Tejinder Singh, of Goldstein & Russell, P.C.,
reargue the Heller case before a panel of judges. Taking us back in time to 2008, the advocates
will press the arguments for and against a Second Amendment right to own a handgun without a
trigger lock. We plan to use the following format: Mr. Shah will argue first for petitioner
(favoring gun regulation) with 15 minutes. Mr. Singh will argue second for respondent (robust
Second Amendment rights) with 20 minutes. Mr. Shah will have a 5-minute rebuttal. The
advocates should be given a 1-minute “opening spiel” grace period to set up their arguments
before questioning begins. A Q&A session with the advocates and the judges will follow.
BENCH BRIEF
Thank you so much for giving your time to our reargument of District of Columbia v. Heller.
Please let this serve as an overview for the upcoming panel. We will be focusing on a few
broader themes, including the following:
1. Understanding the plain meaning of the constitutional text. One of the most spirited and
interesting debates in Heller is whether the first clause of the Second Amendment is “prefatory,”
as the majority held, or instead enacts an important qualification on the scope of the right to bear
arms, as the dissent argued. Moreover, there is a question whether the “right of the people”
denotes an individual right or a collective right. Parsing these words and determining how they
interact is obviously the central challenge in Heller, and the analysis reasonably starts with the
plain meaning of the text. It would be beneficial at argument to explore how the plain text
compares with other constitutional provisions, and how that should influence judicial
understandings of the Second Amendment.
2. Evaluating the importance of the original meaning of the Constitution. Both the majority
and the dissent in Heller base their analysis, in substantial part, upon what the amendment meant
at the time of the founding. One critical question is what role originalism should play in
constitutional interpretation—especially when, as in Heller, the historical record was unclear, or
arguably conflicted. While we do not have time to delve into all of the historical nuances or to
set forth an accurate, comprehensive picture of the history, it would be useful to examine what
role the original meaning plays under different sets of assumptions. It would also be nice to
discuss the merits of originalism in light of technological advances in the realm of firearms.
3. Determining the importance of precedent. Prior to Heller, the Second Amendment had
not successfully been used to challenge gun restrictions. And there had been a failed effort to
challenge a prohibition on sawed-off shotguns. To what degree does that history of gun
regulation matter in interpreting the Second Amendment?
4. Assessing the merit of policy arguments. The Heller Court declined to establish a level of
scrutiny for evaluating laws that burden Second Amendment rights. Justice Breyer’s dissent
argued for a balancing of interests that would have saved the District of Columbia’s gun laws. To
what degree should courts conduct a policy analysis in determining whether a gun ban survives
constitutional scrutiny? To what extent should a court defer to the legislature’s findings
regarding the appropriateness of a gun law?
5. The separate issue of the trigger lock. Heller struck down not only D.C.’s handgun ban,
but also the provision requiring all lawfully possessed guns to be kept unloaded and
disassembled, or in the alternative restricted with a trigger lock. This obviously has implications
for the use of other gun safety features, including so-called “smart guns,” which are a major issue
in gun rights today.
6. What are the limiting principles? If a handgun ban is constitutional, then under what
circumstances could a gun law be unconstitutional? If a handgun ban is unconstitutional, then
what does the Constitution permit governments to do?