Firearms, Guns, the Second Amendment and Bankruptcy – Part 1



There is no express Section in the United States Bankruptcy Code addressing Firearms.  The Second Amendment does state that the people of the United States have the right to bear arms.  However, there is no express or implicit mention of Firearms in the Bankruptcy Code.  Although the author believes that the possession of Firearms by the population is an important protection recognizes by the US Constitution, the absence of the mention of Firearms in the Bankruptcy Code does not present a constitutional conflict.  The protections in the Constitution, such as the Right to Freedom of Speech, or the Press, or the Right to bear Arms, are written as a prohibition against governmental action.

The government, in the intention of the ratifiers of the US Constitution, is prohibited from infringing upon your Freedom of Speech.  Your boss can fire you for saying something he deems offensive.  A private organization can deny you entry if your views offend.  The Federal Government, and possibly, the State Governments, according to an interpretation of the US Constitution according to Original Intent, cannot legally take measures that infringe upon such Rights.

Such a pure interpretation of the Constitution was clouded by the restaurant and public accommodation cases of the 1960s and the ensuing Civil Rights Legislation.  Ron Paul, and I believe, his son, Rand Paul, were labeled racists for their criticism of such Legislation.  That is the character of debate, in the United States, where facts and rational and logical argument is often and usually supplanted by ad hominem attacks and positions taken based upon what tribe one subscribes.

Most of what you see on television, reported in the newspapers, and other mainstream publications, and much of the internet, is propaganda, and falsehoods, designed to manipulate the target populations.  Such is the case with the Civil Rights Legislation of the 1960s.  Such Legislation was probably never enacted because of real concern for what is often referred to as minority populations, meaning populations defined by race, and later, sex.  The concept of the minority, as contemplated by the creators of the US Constitution, was an individual, whose actions or beliefs, are in contravention to those prescribed or held, by the majority of the population.

Just like the Civil War was not waged to stop slavery, the Civil Rights Legislation of the 1960 was not enacted to redress real racial, or other, inequities.  The Civil War was instigated by Lincoln and the North to establish the superiority of the Federal Government over the individual States.  The purpose of the Civil Rights Legislation was to further strengthen the supremacy of the Federal Government over the States through its provisions for what are termed public accommodations, and later, Affirmative Action, and other programs.

Ron Paul could probably be characterized as a somewhat strict Libertarian, and certainly an individual who values the US Constitution, and holds that the Constitution should be interpreted according to intentions of its creators, or original intent.     That is probably a correct characterization of the views of Ron Paul, as enunciated in his many lectures and speeches.  The private views of Ron Paul this author does not know.  Ron Paul may be, as some say, just part of the controlled opposition.  Mr. Paul quick concession in the 2012 Republican Primaries, and endorsement of Mitt Romney, and the antics of his son, Rand, including his endorsement of Mitch McConnell, among other factors, leads one logically to question the true sincerity of the Pauls.

The rational for the constitutional legality of such Legislation was that a restaurant, for example, needs a license granted by a governmental unit, to operate.  The possession of such license grants the restaurant a character, at least partially, of being a governmental entity.  Because the US Constitution prohibits governmental entities from taking action, for example, that denies the equal protection of certain of its citizens, the restaurant, therefore because of its nominal character as a governmental entity, cannot deny any individual or group of citizens entry and service, based upon their race, or other protected classifications.

That is obviously a shoe string argument because a restaurant and many restaurants, could exist without the sanction or license of a governmental body.  The restaurant only takes on a public character because the government created laws requiring such restaurants to have licenses to operate.

To oppose such Legislation based upon an original intent interpretation of the United States Constitution does not make one a racist.  Ron Paul would say that it is indefensible to prohibit someone service in a restaurant because of the race, religion, or sex.  However, it is not within the power of the Federal Government to pronounce such Legislation.  The States individually, could within their Police Powers, namely to provide for the Health, Safety and Welfare of its residents, properly have the power to make such determinations, but not the Federal Government.

The private entities that own and operate restaurants could also voluntarily provide service, absent such discrimination.  That was what was happening in the targeted States, anyway.  Just like the traditional practice of slavery was in decline at the time of the commencement of the Civil War, such practices by restaurants, and other public arenas, was also in decline, and becoming largely non-existent.

The expansion of Federal power, and the centralization of power, were occurrences that the US Constitution was partially created to prevent.  The creators of the United States Constitution were imperfect actors.  However, most understood the dangers inherent in centralization of power, through their direct experience with the English Monarchy.  Common Core, Obamacare, Federalization of the Police, and other programs are possible only through the subversion of the United States Constitution.

How does this relate to the title of the Article, Firearms, Guns, the Second Amendment and Bankruptcy?  Not much.  However, the creators of the Bankruptcy Code, which is Congress, a Federal Entity, are under no constitutional requirement to grant any form of protection through the Bankruptcy Code, to gun owners.  Congress is only prohibited from incorporating into the Bankruptcy Code, provisions that limit the Right to Bear Arms.  Congress may not limit a citizen’s right to bear arms, but it under no obligation to expand those Rights.

Bankruptcy and its relation to Firearms are an important concept in Law.  When a Debtor files Bankruptcy, certain Exemptions are available, depending upon the Jurisdiction in which the Debtor files.  Exemptions are provisions in either Federal Law or State Law that protect certain Assets from seizure by either Creditors, or in Bankruptcy, the Bankruptcy Trustee.  Some State Exemption Laws have provisions that directly address Firearms.  Some State Exemption Laws grant a full Exemption to Firearms, where others limit the number of guns, or the total market value of the guns.  Other Exemptions, such as Exemptions for Household Goods, Wildcard Exemptions, and Exemptions for Family Heirlooms, may be used to protect Firearms from seizure by a Creditor or Bankruptcy Trustee.  Whether a Debtor’s Firearms fall within an Exemption is also important when a Debtor seeks to avoid a Lien in Bankruptcy which is referred to as a Non Possessory, Non Purchase Money Security Interest.

All of these topics will be discussed in detail in Part II and Part II in our Series on Firearms, Guns, the Second Amendment, and Bankruptcy.

Image credit:  Stephanie Frey