The Right to Own a Gun Under Heller

How far does the Supreme Court’s ruling on an individual’s right to own a gun under Heller go?

In District of Columbia v. Heller, 54 U.S. ___ (2008), the U.S. Supreme Court ruled that the U.S. Constitution protects an individual’s right to own a gun for personal use. Yet despite the Court’s clear ruling that people may keep a loaded handgun at home for self-defense, Heller allows for certain restrictions to gun ownership. The ruling leaves many uncertainties as to which types of gun control laws will be allowed to stand and which will be ruled unconstitutional.

What Heller Says

The Heller case involved a challenge to the District of Columbia’s ban on handguns. For the first time in nearly 70 years, the U.S. Supreme Court ruled on the meaning of the Second Amendment to the U.S. Constitution as it relates to gun control laws.

The Second Amendment provides that “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.”

For many years, scholars and anti-gun proponents have argued that the Second Amendment provides a right to own guns only in connection with service in a militia, and that this right should not extend to private individuals. That argument was roundly rejected by the Supreme Court. In an opinion authored by Justice Antonin Scalia, the Court held that the right to own a gun is not connected with service in a militia; rather, it is a personal right to own a firearm for “traditionally lawful purposes” such as self-defense within the home.

The bottom line: You have a constitutional right to possess a firearm regardless of whether you are serving in a militia. But just how far that right extends remains up in the air.

How Heller Affects Gun Control Laws

How much the ruling in Heller will affect gun control laws in various cities and states remains to be seen.

The gun control law at issue in the Heller case — a nearly across-the-board gun ban in the District of Columbia – was considered to be the strictest gun-control law in the nation. Because the Supreme Court’s ruling concerned only this strict ban on handguns, the decision leaves unclear whether less-stringent bans in other states and cities will survive constitutional challenges.

And, although the Supreme Court’s decision adopted the broader, individual-rights interpretation of the Second Amendment, the Court also made it clear that the right to own a gun continues to have a number of significant qualifications or restrictions, including:

• Not everyone can own a gun. The right does not extend to felons or the mentally ill.
• Guns cannot be carried everywhere. Laws forbidding individuals from carrying  firearms in “sensitive” places, such as schools and government buildings, will probably stand.
• Certain restrictions on the sale of guns are allowed. Laws imposing conditions and qualifications on the commercial sale of firearms will most likely stand.
• Individuals do not have the right to carry certain types of guns. The right does not protect guns that are not generally owned for lawful purposes, such as short-barreled shotguns. Just what kind of handguns may be possessed is not explicitly set forth in the opinion (apart from the one specific reference to sawed-off shotguns, which are not allowed).  The Court did endorse the “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” but did not state whether such weapons include assault weapons or semi-automatic weapons.

Given this long list of qualifications, it remains unclear how Heller will affect the many different types of gun control laws that exist in cities and states throughout the country.

New Challenges to Gun Control Laws

One thing is for sure: Advocates all over the country will now challenge gun control laws based on the Supreme Court’s ruling in Heller. Within a day of the decision, lawsuits challenging gun control laws had been filed in Chicago and San Francisco, and additional challenges are expected in New York, Philadelphia, Detroit, and countless other cities.

While gun rights advocates like the National Rifle Association hailed the Supreme Court’s decision as a welcome addition to their arsenal in the ongoing war against gun control laws, only time (and future court decisions) will tell whether the Court’s ruling marks the beginning of a comprehensive rollback of gun control restrictions in this country or is merely a symbolic ruling that will ultimately leave most of those laws in effect.

To learn more about how the criminal justice system works, including the latest U.S. Supreme Court decisions, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo).

© 2009 Nolo

Recent Criminal Law Developments

by Attorney Paul Bergman

Get the latest news in criminal law – from vehicle searches to federal sentencing to death penalty trends.

In general, 2007 saw few major national changes in rules pertaining to criminal law and procedure. However, there were a few developments of note, including new search and seizure rights, continued decisions on sentencing those convicted of federal crimes, and certain trends in the death penalty area.

Police Have More Rights to Search Cars and Occupants

When police officers pull a vehicle over for a traffic infraction, they usually cite the driver and allow the driver to continue on his or her way. However, recognizing the potential danger to police officers and the mobility of cars, in 2007 the U.S. Supreme Court issued rulings that authorize police officers to protect themselves by asking the driver and any passengers to stand outside the vehicle.

In the case of Brendlin v. California (2007), the U.S. Supreme Court ruled that police officers who carry out traffic stops “seize” all of a car’s occupants. The decision makes clear that police officers have the same power over passengers that they do over drivers. For example, if a police officer reasonably suspects that a car’s occupant is armed, the officer can conduct a “pat down” search of that person regardless of whether he is the driver or a passenger. As a result of this ruling, drivers as well as passengers alike can challenge the legality of a stop and any ensuing search and arrest.

Federal Trial Court Judges Have More Say in Sentencing

In 2007, the U.S. Supreme Court continued its trend of allowing federal trial courts more discretion in sentencing those convicted of crimes.

History of the “Sentencing Guidelines.” Concerned about disparities and leniency in sentencing, over two decades ago the U.S. Congress enacted The Sentencing Reform Act of 1984. The law led to the creation of a Guidelines Manual, which set forth mandatory sentences for almost all federal crimes. Mandatory sentencing requires judges to impose specific and identical sentences on all defendants who violate laws, rather than allowing the judge to consider various factors when deciding on an appropriate punishment, such as the defendant’s past criminal record, age, and sophistication; the circumstances under which the crime was committed; and whether the defendant genuinely feels remorse.

Over the years, many judges, defense attorneys, and even prosecutors came to oppose the mandatory sentence scheme, believing that it was too rigid and too harsh. Finally, in the case of U.S. v. Booker (2005), the U.S. Supreme Court ruled that the sentences set forth in the Guidelines Manual were advisory and not mandatory.

2007: Sentencing Discretion for Federal Judges Continues. In 2007, the U.S. Supreme Court issued several opinions that further clarified the discretion of federal trial court judges in sentencing those convicted of crimes.

In Gall v. U.S. (2007), the Court ruled that appellate court judges cannot substitute their judgment for that of a trial judge. An appellate court judge can only reverse a trial judge’s sentence if it constitutes an abuse of discretion. (An appellate court is a higher court that reviews the decision of a trial court when a losing party files an appeal.)

If a trial judge issues a sentence that is within the range specified in the Guidelines Manual, it is presumed to be reasonable. ( Rita v. U.S. (2007).) But a trial judge can issue a sentence that departs from this range, and it will still stand on appeal as long as it is reasonable. For example, if a trial judge believes that the Guidelines’ recommended punishment for possession of crack cocaine is unduly harsh compared to the recommended punishment for powder cocaine, the trial judge can give a lesser sentence for possession of crack cocaine. Such a decision is final as long as it is reasonable. (Kimbrough v. U.S. (2007).)

Death Penalty Update

The number of death sentences handed out and the number of executions carried out continued to decrease in 2007. Forty-two executions were carried out in 2007, compared to 53 executions in 2006, 60 executions in 2005, 59 executions in 2004, 65 executions in 2003, and 71 executions in 2002. In 2007, 110 convicted murderers were given death sentences, compared to 114 in 2006 and 128 in 2005.

Another state abolishes the death penalty. New Jersey abolished the death penalty in 2007. As a result, 37 states now authorize the death penalty.

Lethal injection method under attack. The U.S. Supreme Court has heard arguments in the case of Baze v. Rees and should issue its decision sometime in 2008. Baze v. Rees centers on whether the most frequently used combination of drugs used for execution by lethal injection, sometimes called a “three drug cocktail,” violates the 8^th Amendment’s proscription of cruel and unusual punishment. Ten states placed a moratorium on executions by lethal injection even before the Supreme Court announced its decision to hear the case, and after its announcement, a few more states did so.

To learn more about how the criminal justice system works, including the latest U.S. Supreme Court decisions, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo).

© 2009 Nolo

Reasons to Use Chapter 13 Bankruptcy Instead of Chapter 7 Bankruptcy

Sometimes it makes sense to file for Chapter 13 bankruptcy instead of Chapter 7 bankruptcy.

Many debtors choose not to file for Chapter 13 bankruptcy because it requires repayment of at least a portion of their debts (unlike Chapter 7 bankruptcy, which wipes out many debts entirely ).

In some situations, however, Chapter 13 bankruptcy is the better bankruptcy option. Not only that, but certain debtors don’t get to choose: Not everyone is eligible for Chapter 7 bankruptcy, so Chapter 13 will by the only option available to some filers.

Here are some good reasons to file for Chapter 13:

You cannot file for Chapter 7. You won’t be allowed to file for Chapter 7 if you cannot meet some new requirements imposed by the 2005 revisions to the bankruptcy law. Under these new rules, you cannot file for Chapter 7 if both of the following are true:

• Your current monthly income over the six months prior to your filing date is more than the median income for a household of your size in your state (go to the website of the United States Trustee,www.usdoj.gov/ust, and click “Means Testing Information” to see the median figures for your state).
• Your disposable income, after subtracting certain expenses and monthly payments for debts you would have to repay in Chapter 13, exceeds certain limits set by law. These calculations are commonly referred to as the “means test” — if you have the means to repay a certain amount of your debt through a Chapter 13 repayment plan, you flunk the test and are ineligible for Chapter 7 bankruptcy. (For more information, including a link to an online calculator you can use to see whether you pass the means test, seeThe Bankruptcy Means Test: Is Your Income Low Enough for Chapter 7 Bankruptcy?)

The means test can get fairly complex — and, to make matter worse, Congress has its own definitions of “disposable income,” “current monthly income,” “expenses,” and other important terms, which sometimes operate to make your income seem higher than it actually is. You can find step-by-step instructions to determine if you qualify for Chapter 7 under these new rules in How to File for Chapter 7 Bankruptcy, by attorney Stephen Elias, attorney Albin Renauer, and Robin Leonard, J.D. (Nolo).

In addition, if you have received a Chapter 7 bankruptcy discharge within the last eight years, or a Chapter 13 discharge within the last six years, you may not file for Chapter 7 bankruptcy.

You are behind on your mortgage or car loan, and want to make up the missed payments over time and reinstate the original agreement. You cannot do this in Chapter 7 bankruptcy. You can make up missed payments only in Chapter 13 bankruptcy.

You have a tax obligation, student loan, or other debt that cannot be discharged in Chapter 7. You can include these debts in your Chapter 13 plan and pay them off over time.

You have a sincere desire to repay your debts, but you need the protection of the bankruptcy court to do so. This might be the case if creditors are coming after you, or if you simply require the formal structure and deadlines the Chapter 13 process provides in order to follow through on your good intentions.

You have nonexempt property that you want to keep. When you file for Chapter 7 bankruptcy, you get to keep only exempt property — property that is protected from creditors under state or federal law. You have to give your nonexempt property to the bankruptcy trustee, who can sell it and distribute the proceeds to your creditors.

In Chapter 13, you don’t have to give up any property. Instead, you repay your debts out of your income. So, if you have nonexempt property that you can’t bear to part with, Chapter 13 might be the better choice.

You have a codebtor on a personal debt. If you file for Chapter 7 bankruptcy, your codebtor will still be on the hook — and your creditor will undoubtedly go after the codebtor for payment. If you file for Chapter 13 bankruptcy, the creditor will leave your codebtor alone, as long as you keep up with your bankruptcy plan payments.

For more help deciding which bankruptcy is right for you, see The New Bankruptcy: Will It Work for You?, by attorney Stephen Elias (Nolo). Or, for help filing Chapter 13, see Chapter 13 Bankruptcy: Repay Your Debts, by attorney Stephen Elias and Robin Leonard, J.D. (Nolo).

© 2009 Nolo

An Overview of Chapter 13 Bankruptcy

The basic steps involved in a typical Chapter 13 bankruptcy case.

Chapter 13 bankruptcy, sometimes called reorganization bankruptcy, is quite different from Chapter 7 bankruptcy. In a Chapter 7 bankruptcy, most of your debts are wiped out; in exchange, you must relinquish any property that isn’t exempt from seizure by your creditors. In a Chapter 13 bankruptcy, you don’t have to hand over any property, but you must use your income to pay some or all of what you owe to your creditors over time — from three to five years, depending on the size of your debts and income.

Chapter 13 Eligibility

Chapter 13 bankruptcy isn’t for everyone. Because Chapter 13 requires you to use your income to repay some or all of your debt, you’ll have to prove to the court that you can afford to meet your payment obligations. If your income is irregular or too low, the court might not allow you to file for Chapter 13.

If your total debt burden is too high, you are also ineligible. Your secured debts cannot exceed $1,010,650, and your unsecured debts cannot be more than $336,900. A “secured debt” is one that gives a creditor the right to take a specific item of property (such as your house or car) if you don’t pay the debt. An “unsecured debt” (such as a credit card or medical bill) doesn’t give the creditor this right.

The Chapter 13 Process

Before you can file for bankruptcy, you must receive credit counseling from an agency approved by the United States Trustee’s office. (For a list of approved agencies, go to the Trustee’s website at www.usdoj.gov/ust and click “Credit Counseling and Debtor Education.”) These agencies are allowed to charge a fee for their services, but they must provide counseling for free or at reduced rates if you cannot afford to pay.

In addition, you’ll have to pay the filing fee, which is currently $274, and file numerous forms. For line-by-line instructions on filling out the required bankruptcy forms, see Chapter 13 Bankruptcy: Keep Your Property & Repay Debts Over Time, by Stephen Elias and Robin Leonard (Nolo).

The Chapter 13 Repayment Plan

The most important part of your Chapter 13 paperwork will be a repayment plan. Your repayment plan will describe in detail how (and how much) you will pay each of your debts. There is no official form for the plan, but many courts have designed their own forms.

How Much You Must Pay

Your Chapter 13 plan must pay certain debts in full. These debts are called “priority debts,” because they’re considered sufficiently important to jump to the head of the bankruptcy repayment line. Priority debts include child support and alimony, wages you owe to employees, and certain tax obligations.

In addition, your plan must include your regular payments on secured debts, such as a car loan or mortgage, as well as repayment of any arrearages on the debts (the amount by which you’ve fallen behind in your payments).

The plan must show that any disposable income you have left after making these required payments will go towards repaying your unsecured debts, such as credit card or medical bills. You don’t have to repay these debts in full (or at all, in some cases). You just have to show that you are putting any remaining income towards their repayment.

How Long Your Repayment Plan Will Last

The length of your repayment plan depends on how much you earn and how much you owe. If your average monthly income over the six months prior to the date you filed for bankruptcy is more than the median income for your state, you’ll have to propose a five-year plan. If your income is lower than the median, you may propose a three-year plan. (To get the median income figures for your state, go to the United States Trustee’s website,www.usdoj.gov/ust, and click “Means Testing Information.”)

No matter how much you earn, your plan will end if you repay all of your debts in full, even if you have not yet reached the three- or five-year mark.

If You Can’t Make Plan Payments

If for some reason you cannot finish a Chapter 13 repayment plan — for example, you lose your job six months into the plan and can’t keep up the payments — the bankruptcy trustee may modify your plan, or the court might let you discharge your debts on the basis of hardship. Examples of hardship would be a sudden plant closing in a one-factory town or a debilitating illness.

If the bankruptcy court won’t let you modify your plan or give you a hardship discharge, you might be able to convert to a Chapter 7 bankruptcy or ask the bankruptcy court to dismiss your Chapter 13 bankruptcy case (you would still owe your debts, plus any interest creditors did not charge while your Chapter 13 case was pending). For information on your alternatives in this situation, see Chapter 13 Bankruptcy: Keep Your Property & Repay Debts Over Time, by Stephen Elias and Robin Leonard (Nolo).

How a Chapter 13 Case Ends

Once you complete your repayment plan, all remaining debts that are eligible for discharge will be wiped out. Before you can receive a discharge, you must show the court that you are current on your child support and/or alimony obligations and that you have completed a budget counseling course with an agency approved by the United States Trustee. (This requirement is separate from the mandatory credit counseling you must undergo before filing for bankruptcy — you can find a list of approved agencies at the Trustee’s website, www.usdoj.gov/ust; click “Credit Counseling and Debtor Education.”)

For more information, see Chapter 13 Bankruptcy: Keep Your Property & Repay Debts Over Time, by Stephen Elias and Robin Leonard (Nolo).

© 2009 Nolo

The Bankruptcy Means Test: Is Your Income Low Enough for Chapter 7 Bankruptcy?

A means test calculator can determine whether you qualify for Chapter 7 bankruptcy — try one online.

The “means test” is a formula designed to keep filers with higher incomes from filing for Chapter 7 bankruptcy. Only bankruptcy filers with primarily consumer debts, not business debts, need to take the means test. High income filers who fail the means test may use Chapter 13 bankruptcy to repay a portion of their debts, but may not use Chapter 7 bankruptcy to wipe out their debts altogether.

However, having to take the Chapter 7 means test doesn’t mean that you must be penniless in order to use Chapter 7 bankruptcy. You can earn significant monthly income and still qualify for Chapter 7 bankruptcy if you have a lot of expenses, such as a high mortgage payment. This article shows you simple ways to determine whether you can pass the means test — and, therefore, use Chapter 7 — if you were to file for bankruptcy.

How Does the Chapter 7 Means Test Work?

The means test was designed to limit the use of Chapter 7 bankruptcy to those who truly can’t pay their debts. It does this by deducting specific monthly expenses from your “current monthly income” (your average income over the six calendar months before you file for bankruptcy) to arrive at your monthly “disposable income.” The higher your disposable income, the more likely you won’t be allowed to use Chapter 7 bankruptcy.

To take the means test, you must first determine whether your income is more or less than the median income in your state. If you earn more than the median, you must figure out whether you would have enough left over, after subtracting certain expenses, to repay some of your debt.

Is Your Income More Than the Median?

The first step is simple: If your current monthly income is less than the median income for a household of your size in for your state, you pass. Period. You’re done. You do not need to complete the rest of the means test. You can file for Chapter 7.

Do You Have Enough Disposable Income to Repay Some Debts?

For those whose household income exceeds the state median, the means test computations get significantly more complex. You must determine whether you have enough income left over (called “disposable income”), after paying your “allowed” monthly expenses, to pay off at least a portion of your unsecured debts (such as credit card bills). If your disposable income adds up to more than a certain amount, you fail the means test and cannot file for Chapter 7 bankruptcy.

Median income levels vary by state and household size, and each county and metropolitan region has different allowed amounts for categories of expenses: basic necessities, housing, and transportation. But don’t worry: You can get through the math with the help of an online calculator.

Use a Chapter 7 Means Test Online Calculator

If you’re looking for an easy way to determine your eligibility under the Chapter 7 means test, use our online means test calculator, created by the author of Nolo’s book How to File for Chapter 7 Bankruptcy, Albin Renauer, J.D. Once you enter your zip code, the calculator uses the applicable income and expense standards for your state, county, and region to determine your eligibility.

You’ll have to supply some income and expense information, but the calculator will save you the trouble of looking up income and expense figures for your area and doing the math. And, if you decide to file for Chapter7 bankruptcy, you can use these figures on your official paperwork (the calculator closely follows the format of the means test form, Official Form 22A, that you must complete when you file for bankruptcy).

If You Pass the Chapter 7 Means Test

Just because you qualify under the means test does not necessarily mean you should file for Chapter 7 bankruptcy — merely that you can. Any decision to file for Chapter 7 bankruptcy should be made only after considering alternatives and other factors discussed in other articles on this website or in Nolo’s The New Bankruptcy: Will It Work for You?, by Attorney Stephen Elias.

Once you’ve made your decision to go ahead and file for Chapter 7 bankruptcy, Nolo’s book How to File for Chapter 7 Bankruptcy, by Stephen Elias, Albin Renauer, and Robin Leonard, can walk you step by step through the filing process.

If You Don’t Pass the Chapter 7 Means Test

If you don’t pass the means test, you are limited to using Chapter 13 bankruptcy, which requires you to make monthly payments over a five-year period according to a strict budget monitored by the court. Most people who file for bankruptcy prefer Chapter 7, which requires no repayment. However, Chapter 13 bankruptcy is still the best way to handle specific types of problems, like curing a default on a mortgage. (SeeReasons to Use Chapter 13 Bankruptcy Instead of Chapter 7 Bankruptcy.)

For help filing a Chapter 13 bankruptcy, see Nolo’s Chapter 13 Bankruptcy: Repay Your Debts, by Stephen Elias and Robin Leonard.

© 2009 Nolo