Lessons in Latin

Today’s Latin lesson is ab initio.

CHICAGO (AP) — In a major victory for gun rights advocates, a federal appeals court on Tuesday struck down a ban on carrying concealed weapons in Illinois — the only remaining state where carrying concealed weapons is entirely illegal — and gave lawmakers 180 days to write a law that legalizes it.

Whoa! The Court gave lawmakers 180 days?

The court gave 180 days before its decision will be returned to the lower court to be implemented,” Maura Possley, a Madigan spokeswoman, said in a statement. “That time period allows our office to review what legal steps can be taken and enables the legislature to consider whether it wants to take action.”

What they are doing is slow-walking this ruling back to the lower court to give the legislature time to promulgate a new set of hoops for law-abiding citizens to jump through. There is, of course, one tiny problem they have.

The classic formulation of the void ab initio doctrine, and the one followed in Illinois, is found in the early case of Norton v. Shelby County, 118 U.S. 425, 30 L. Ed. 178, 6 S. Ct. 1121 (1886). There, the Court considered whether an unconstitutional state statute that created a county board could give validity to the acts of the board. The Court answered in the negative, stating in relevant part:

“An unconstitutional act 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.” Norton, 118 U.S. at 442, 30 L. Ed. at 186, 6 S. Ct. at 1125.

See People v. Gersch, 135 Ill. 2d 384, 399 (1990) (“An unconstitutional law ‘confers no right, imposes no duty and affords no protection. It is *** as though no such law had ever been passed,” quoting People v. Schraeberg, 347 Ill. 392, 394 (1932), in turn citing Board of Highway Commissioners v. City of Bloomington, 253 Ill. 164, 176 (1911), in turn citing Norton, 118 U.S. 425, 30 L. Ed. 178, 6 S. Ct. 1121). Thus, under the Norton rule, an unconstitutional statute is void ab initio, i.e., void “from the beginning.” See Black’s Law Dictionary 1604 (8th ed. 2004).

Using the logic that an unconstitutional statute is void ab initio and applying that doctrine to the Illinois Concealed Carry Law ruled unconstitutional by the Federal Court days ago, it really doesn’t matter that the Court gave the legislature 180 days to promulgate anything- it’s all smoke and mirrors. Right now, this minute, there is no Law prohibiting carrying a concealed weapon.

So make sure you smile and wave before you cut me off in traffic today.

One comment

  1. I have read the ruling ( http://www.scribd.com/doc/116435469/7th-Circuit-Court-overturns-Illinois-concealed-carry-ban ) and found a couple noticeable things glaring out:

    1) “But the Supreme Court has not yet addressed the question whether the Second Amendment creates a right of self-defense outside the home.”

    That is a very sad development when an en banc panel believes an Amendment to the Constitution ‘creates’ a right.

    2) “The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our man-date stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.”

    Justicia cunctator est justicia denego. Justice delayed is justice denied.

    How can a panel of judges not know that? Did they, or did they not take an Oath to defend the Constitution?

    That’s why they are called a ‘slough of judges’. ( http://www.rinkworks.com/words/collective.shtml )

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