Most people arguing about constitutional rights have never heard of Norton v. Shelby County. That is not an accident. If Norton were taken seriously, a large portion of modern federal gun law would have to be acknowledged as legally nonexistent. Courts know the case. They cite it selectively. And they work very hard to make sure its actual holding never gets applied to anything that matters.
The case is 118 U.S. 425, decided unanimously by the Supreme Court in 1886. Its holding is not subtle, not ambiguous, and not limited to the narrow facts that produced it. An unconstitutional act, the Court said, is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
Every word of that sentence matters.
What the Case Was About
Norton v. Shelby County arose from a dispute over bonds issued by a board of county commissioners in Tennessee. The board authority rested on a state statute. The problem was that the statute was unconstitutional. When that constitutional defect came to light, the question before the Supreme Court was direct: did the acts of officials who operated under a void law have any legal validity? The Court said no. If the law creating the board was unconstitutional, the board had no lawful existence. Its acts had no legal effect. The bonds it issued were worthless not because a court later declared them worthless, but because the authority to issue them never existed in the first place.
That is the void ab initio doctrine in its original application. Ab initio is Latin for from the beginning. The law was void from the beginning, not from the moment a court noticed the problem. Everything done under it was void from the beginning. The court role was not to make the law void. The court role was to recognize a voidness that already existed.
The Four Consequences Norton Established
First, an unconstitutional act confers no rights. No one can claim a legal entitlement based on a void statute. Second, an unconstitutional act imposes no duties. No one has a legal obligation to comply with a void statute. This is the consequence modern gun law most wants to avoid. If 922(g) is unconstitutional, the persons listed in its prohibited categories have no legal duty to refrain from possessing firearms. Third, an unconstitutional act affords no protection. No official can claim lawful authority for actions taken under a void law. Fourth, an unconstitutional act creates no office. Any position of authority that derives its existence from a void law does not lawfully exist.
Why Longevity Is No Defense
The government most reliable argument in Second Amendment cases is that the restriction in question is longstanding. Courts have accepted this argument repeatedly, treating age as a proxy for constitutional validity. Norton says that reasoning is backwards. A void act does not become valid through age. The passage of time cannot cure a constitutional defect, because the defect exists in the act relationship to a higher law that does not change over time. The Second Amendment said what it said in 1791. Article VI said what it said in 1788. Neither of them has been amended to accommodate 922(g), which was enacted in 1968. If 922(g) contradicts the Second Amendment negative command, it was void in 1968. It remains void today.
What Norton Requires of Courts
The void ab initio doctrine does not ask courts to do something novel or aggressive. It asks them to do what Article VI already requires: treat the Constitution as higher law and treat laws that contradict it as lacking legal force. That means a court presented with a constitutional challenge to 922(g) cannot dispose of the case by calling the restriction longstanding. It cannot rely on a presumption of validity that Norton does not recognize. It must ask the question Article VI demands: was this law made in pursuance of the Constitution? If the Second Amendment is a negative command and the law contradicts that command, the answer is no. Norton then supplies the consequence: the law is not a law. It confers no rights, imposes no duties, and affords no protection. It is as inoperative as though it had never been passed. The words have not changed. An unconstitutional act is not a law. It never was.