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.
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.”
The Four Consequences Norton Established
First, an unconstitutional act confers no rights. Second, an unconstitutional act imposes no duties. No one has a legal obligation to comply with a void statute. 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.
Why Longevity Is No Defense
The government’s most reliable argument in Second Amendment cases is that the restriction in question is longstanding. 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’s 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 has been amended to accommodate § 922(g), which was enacted in 1968. Fifty-eight years of enforcement do not transmute a void act into a constitutional one.
Every court in America that cites Norton while upholding a law Norton would void is doing the same thing courts have always done with inconvenient constitutional principles: keeping the words on the page while draining the meaning out of them. The words have not changed. An unconstitutional act is not a law. It never was.