Salerno and the Second Amendment

The Supreme Court’s Second Amendment is beginning to take more concrete shape. In United States v. Rahimi, the Court rejected a challenge to the federal prohibition on gun possession by those subject to certain kinds of restraining orders. In that case, the Court’s analysis hinged in part on the difficulty of successfully waging facial constitutional challenges. It confirmed that the teaching of United States v. Salerno—that a statute is only facially unconstitutional if it has no valid applications—applies fully to the Second Amendment. Although it relied on this procedural lesson from Salerno, the justices overlooked Salerno’s substantive teaching: that contemporary and compelling interests in protecting public safety are not out of bounds in constitutional litigation, but instead are central to how courts should evaluate constitutional claims. This Article fleshes out these twin lessons from Salerno and urges the Court’s consistency in how it thinks about adjudicating individual rights.