Annals of Incorporation

Paul Castiglione, policy director of the Cook County State’s Attorney’s Office, caused some stir when he observed that the federal circuit court of appeals ruling against Illinois’s ban on concealed carry of firearms was not binding on the state legislature:

There was one surprise to come from Tuesday’s hearing for some lawmakers. It came when Paul Castiglione, with the Cook County State’s Attorney’s office, said his office believes the federal appeals court doesn’t have jurisdiction over the state legislature.

“Only the Illinois Supreme Court can declare a law, a statute from this body of this state to be unconstitutional,” Castiglione said at the hearing.

That was news to State Rep. Michael Zalewski.

“You kind of dropped a pretty big rhetorical bomb on some of us here,” Zalewski said.

If my understanding of the law is correct, Mr. Castiglione is correct on the general principle although probably incorrect in his articulation of it. Rulings of the U. S. Supreme Court are mandatory for all inferior courts, including state courts under the principle known as “incorporation”. Decisions from lower federal courts, including federal appeals courts, however, are not binding on state courts. The issue here is the hierarchy. Federal courts and state courts function within different hierarchies. Federal appeals court decisions are binding on other federal courts within their circuits. They are not binding on state courts.

I am not fanatical with respect to the Second Amendment. I’d be just as happy if it were replaced with a narrower statute. However, it is the law of the land and IMO Chicago, Cook County, and Illinois legislators and state’s attorneys offices have been incompetent in this matter. That doesn’t mean that Mr. Castiglione is wrong; it means that Illinois’s laws are likely to be declared unconstitutional if and when they make it to the U. S. Supreme Court and it would be better if all of the expense involved were spared by re-writing Illinois’s laws to meet constitutional muster.

3 comments… add one
  • PD Shaw

    I’m not sure what he’s saying. The practical implication is this: The federal courts with jurisdiction over Illinois have ruled that the lack of concealed carry provisions violates the U.S. Constitution. Right now, people that have been arrested or are in jail across the state are having their lawyers argue for their freedom, and as far as I know, nothing definitive has been decided. (I think the government will argue that certain laws are void ab initio and others are voidable, and you still committed a crime when you violate a law that was not yet voided) Going forward, every arrest for possession of a concealed weapon will provoke a federal civil rights lawsuit against the cities, counties or state, and with a high probability of success and attorneys fees awarded.

    The federal government cannot order a state legislature to do something, it just awards damages against the state executive when they fail to do their job.

  • every arrest for possession of a concealed weapon will provoke a federal civil rights lawsuit against the cities, counties or state, and with a high probability of success and attorneys fees awarded

    That’s why I think that the legislators and lawyers for Chicago, Cook County, etc. are acting incompetently. I think there need to be more penalties against individuals levied. They shouldn’t be allowed to hide their actions behind their offices. Just having been elected is not a license to do anything you please.

  • PD Shaw

    A large part of your beef then is with the state law that requires local government to indemnify its employees from liability for torts committed within the scope of their employment, though it doesn’t apply to punitive damages. It seems that states like Illinois and California have decided that as between the goals of remedy and deterrence, its better for the victims to be paid than the specific perpetrator be disciplined. Its not entirely crazy. If DNA evidence frees a prisoner who was wrongfully convicted ten years ago, the individuals may no longer be around and may be judgment proof.

    This is a pretty good article on the benefits of the internal complaint process for disciplinary purposes and why civil rights lawyers may not want to use it:

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