Translating the Second Amendment

As seen in the MetroWest Daily News:


Following the Newtown shooting, people asked for an open and honest discussion about firearms rights and gun control. This has inexorably led to discussions of the meaning and purpose of the Second Amendment. Until we can all at least understand the amendment’s purpose, fruitful discussion is impossible.

So, what does the amendment say? “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

Most of the controversy about the Second Amendments stems from the phrase “a well regulated militia”. Many take the position that a well-regulated militia is a military body bound by governmental restrictions, akin to the Armed Forces or the National Guard. However, at the end of the late 18th Century, the term “well regulated”, especially with respect to troops, is more accurately defined as “properly disciplined”. Also, it should be noted that, unlike today, there was no Federal standing army. The defense of the fledgling colonies fell to individual citizens – the people.

If we were to translate the text of the Second Amendment into modern American English: “A properly disciplined body of citizens is necessary for the security of the citizens of a free Country. Therefore, the right of the people to possess and use firearms shall not be infringed.”

Today, the “security of the free state” is maintained by one of the largest professional military organizations in the world. Still, the Supreme Court has recognized the relevance of the Second Amendment. In 2008 and 2010, the Supreme Court issued two landmark decisions officially establishing individuals' rights to possess firearms and employ them for lawful purposes. In District of Columbia v. Heller, the Court ruled that the Second Amendment protects an individual's right to possess a firearm, unconnected to service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. In McDonald v. Chicago, the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government. Nevertheless, the Supreme Court has ruled that the modern Second Amendment is not absolute, and holds that some restrictions on firearms are consistent with the Constitution.

Still, I think the Court missed the mark by focusing primarily on personal protection and “militia service”. While certain limitations have practical import, the drafters of the constitution did not intend the amendment to protect an individual’s ability to defend his hearth and home against vagabonds, delinquents and criminals. The founding fathers did not have the Wild West in mind – they feared a much more powerful enemy. The Second Amendment’s purpose is very sobering, very heavy and very real: It is to ensure that the governed have a way to forcibly limit the actions of those who govern them. It is an implicit challenge which states that if representative politics fail, the people still hold the power to exert their collective will on a corrupt or tyrannical governing body. The Second Amendment as it was written never contemplated the rights of sportsmen, hunters, or the potential victim of a crime.

We should not view the importance of the Second Amendment as a partisan political issue. The question is not “should people be allowed to have guns”, but rather “should the people have the ability to protect themselves from an oppressive government”. This cornerstone right protects individuals hailing from all sides of the political divide.

We all want to limit crime, protect our children and protect ourselves. But, we need to be cautious – a knee-jerk reaction to address incidents like Newtown will have long-term and detrimental consequences to all our collective rights. After 9/11, many people responded out of fear and anger, calling on the government to ensure that something like that would “never happen again”. What it got us, though, was a systematic gutting of other rights, liberties and privacy in the interest of safety. We need to ask ourselves if we are willing to go down that road again.

In 221 years since the Second Amendment was ratified, we have thankfully never needed to implement its true purpose, and I hope that we never do. Still, it doesn’t mean it is not important and worth saving.

The Mayans were Wrong... Now what?

I woke up this morning, and noticed the sun had, in fact, come up.

Once I had finished a cup of coffee, I realized that my back yard had not been converted into a smoking hole in the ground, nor had my house been swallowed by an earthquake.  The earth appeared to be, for the most part, still here.  A brief check of the news and various social media sites confirmed what I had already suspected...the world did not end on December 21, 2012. 

The news might not be so good for everyone, though.  Over the past year, I had heard anecdotal reports that some people who believed that the Mayans accurately predicted that the end of the world on December 21, 2012 have maxed out credit cards and incurred large amount of debt under the belief that they would not have to repay.  Essentially they were counting on cosmic happenstance to intervene as a sort of galactic loan forgiveness program. 

Wishful thinking, perhaps. 

Then again, the reason others are struggling with debt they cannot afford to pay may be a bit more grounded: the loss of a job, persistent unemployment, medical expenses, foreclosure, poor spending habits, etc.    Whatever the case, Kelsey & Trask, P.C. stands ready to help.  To schedule a consultation with an attorney to address bankruptcy or debt relief, call 508.655.5980. 

We all might as well start off the 14^th b’ak’tun with a fresh financial start.

New Figures for Median Family Income Released

It's time for our bi-annual median family income update again. The United States Department of Justice twice per year releases new Median Family income figures for each state and territory. These figures are used to calculate a debtor's eligibility to file for bankruptcy under Chapter 7 of the Bankruptcy Code. If your income is greater than the median income for your state of residence and family size, you many not be able to file a Chapter 7 bankruptcy case.

The Means Test calculation compares your average monthly income (as calculated over the last six (6) months) to the median family income in your state for a household of your size. If your average monthly income is lower than the median family income for your state of residence and family size, then you meet the means test and there is a presumption that you may file for Chapter 7 relief.

The Median Family Income for Massachusetts as of May 1, 2012 were as follows:

Family size 1: $55,185 per year
Family size 2: $66,200 per year
Family size 3: $82,873 per year
Family size 4: $102,194 per year

add an additional $7,500 per year for each additional household member.

These figures went down slightly in each category from these figures.

The Median Family Income for Massachusetts as of November 1, 2012 are as follows:

Family size 1: $54,475 per year
Family size 2: $66,076 per year
Family size 3: $80,822 per year
Family size 4: $101,523 per year

add an additional $7,500 per year for each additional household member.

If your income is greater than the median income for your state of residence and family size, you still might meet part (b) of the means test after taking into consideration certain expenses as defined by the Bankruptcy Code and other deductions, including regular charitable donations (up to 15% of your income), school expenses, payments on 401(k)/IRA loans, and health Insurance. If you are subject to this calculation an attorney can help you perform this task.

Click here to learn more about The Means Test or use our Means Test Calculator.

To have an attorney help you with these calculations call 508.655.5980 to schedule a consultation or e-mail us here.

Bankruptcy and Student Loans: Another Infographic

The infographic below provides a summary of the student loan debt problem and the limitations of the current bankruptcy law to resolve that problem.  For a more in depth review of these issues see our previous post: Can bankruptcy help with my student loans?.



From: OnlineColleges.net

Reprinted from OnlineColleges.net.

Kelsey & Trask, P.C. provides this graphic for informational purposes only. We do not endorse nor claim endorsement from the source site or organization. Kelsey & Trask, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.

The Housing Crash and Bounce: Infographic

The following infographic provides an overview of the real estate crash in the United States over the last few years, and provides some perspective on how big the ups and downs have been.

 
Riding the Trillion-Dollar Real Estate Recovery Roller Coaster.

Reprinted from RealEstate.com

Kelsey & Trask, P.C. provides this graphic for informational purposes only. We do not endorse nor claim endorsement from the source site or organization. Kelsey & Trask, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.

What to do when you receive a Notice of Bankruptcy? Step 5: Do you need an attorney?

When you receive a Notice of Bankruptcy, you are likely to have a lot of questions.  In this series we have tried to help walk you through how to answer some of those questions, but unfortunately the process is complicated and you may only have more questions now that you know your rights and deadlines.

Because those meetings and deadlines happen, in most cases, in a very short period of time, it's important to get advice and get it quickly if you have questions.  Waiting to determine your next move could result in you waiving certain rights.  And taking action without all the information could be even worse, if you violate the automatic stay for example.

Therefore, if you have any questions at all about the best way to proceed when you receive a Notice of Bankruptcy we recommend consulting with an attorney, even if just for one meeting.

More specifically an attorney should help you be able to:

1.  Determine whether you are a creditor or some other interested party, and in any event what rights you may have to challenge the discharge in those situations.

2.  Determine if any action you are currently taking is in violation of the automatic stay or permissible.

3.  Determine whether a debt owed to you may be non-dischargeable, or whether some of the assets may be available to pay that debt.

4.  Determine whether or not you should file a Proof of Claim, and explain the benefits and consequences.

5.  Determine whether or not you should file an adversary proceeding, and explain the benefits and potential consequences.

6.  Assist you in proving fraud if you believe it exists in your specific case.

7.  Determine the potential cost of making any of these challenges and what you stand to gain.

If you are interested in consulting with one of our attorneys relating to a case in Massachusetts, click here to schedule a consultation.

What to do when you receive a Notice of Bankruptcy? Step 4: What is your liability?

In our previous posts in this series you should have already identified why you received the Bankruptcy Notice and what the deadlines are that might apply to you.  In order to determine whether you should take any action related to this Notice, you now need to determine what you may have to lose.

If you are a creditor and you take no action, the debt owed to you may be discharged.  In most cases, there is nothing a creditor can do to prevent the discharge, especially in a no-asset case.  The right of the debtor to file for bankruptcy trumps your right to be paid by the debtor.  However, there are some examples where taking action can result in payment (or at least non-discharge of your debt).  Some examples where you may be able to prevent discharge of your debt, or all debts, is when the debtor committed fraud, when the debtor is trying to exempt property that should not be exempted, or when the debt is secured or otherwise protected from discharge (these are just some examples and is not intended to be an exhaustive list).

In any case where a creditor can prevent discharge, they are usually required to take some action to notify the court of their dispute and enforce their rights.  For example, in the case of fraud, the creditor must file an adversary proceeding challenging the discharge of that debt based on fraud.  In each individual case, you will have to determine if the value of preventing discharge of the debt is greater than the cost of enforcing that right.  In many such cases the creditor may reach settlement with the trustee regarding payment.

There are also situations where a bankruptcy may affect your liability, but there is nothing you can do about it.  For example, many codebtors will be affected by the bankruptcy of the debtor but have little rights to challenge the bankruptcy, because their liability is due to their own agreement with the creditor and they have no separately existing rights against the debtor.  This is often the case when one spouse, or ex-spouse files for bankruptcy.  Bankruptcy can have a major affect on debts owed by both spouses, and therefore property division, but if the divorce agreement doesn't appropriately address this possibility, the non-debtor spouse may have few or no options.  For more information about cosignors or the interplay of divorce and bankruptcy you may want to review these other posts:

I am the primary borrower on a loan and my cosigner has filed for bankruptcy. What should I do to protect myself?

I co-signed a loan and the primary borrower has filed for bankruptcy. What should I do to protect myself?

4 Facts Your Divorce Attorney Should know about Bankruptcy? Fact #4: Jurisdiction over Your Assets

4 Facts Your Divorce Attorney Should know about Bankruptcy? Fact #3: Jurisdiction over Your Debts

4 Facts Your Divorce Attorney Should know about Bankruptcy? Fact #2: Domestic Support Obligations

4 Facts Your Divorce Attorney Should know about Bankruptcy? Fact #1: The Automatic Stay

Once you've identified your exposure in a bankruptcy, the last step is to determine if you need help in limiting that exposure.  Should you hire a bankruptcy attorney to help you evaluate your claims?