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A Step Toward Protecting Veterans’ Second Amendment Rights

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If there’s one thing every member of Congress should agree on, it’s that America’s veterans deserve the full benefit of all the freedoms and constitutional safeguards those veterans served to protect. That has not been the case, shockingly, when it comes to Second Amendment rights. Fortunately, bipartisan coalitions from both the U.S. House and Senate took a major step in reversing this sorry state of affairs last October. The story of that long-overdue reform is a cautionary tale of how seemingly “reasonable” gun-control laws can be exploited to disarm law-abiding Americans … even those who have served under arms.

A common tactic of gun-control advocates is to insist they “support the Second Amendment” and only want to “keep guns out of the wrong hands.” That sounds like a reasonable proposition at first blush. But it gets a lot more complicated when it comes to deciding who should actually be disqualified from having firearms and how those determinations are made. To prevent overreach and abuse, these measures must be targeted at those who actually present an enhanced risk, and the determinations that lead to that finding must allow the person to challenge the government’s assertions before a neutral adjudicator. Simply put, depriving someone of their constitutional right to arms requires—at a minimum—adequate due process.

Most guns owners know that federal and state laws ban certain categories of people from acquiring and possessing firearms. These laws are enforced at retail firearm dealerships via background checks through the National Instant Criminal Background Check System (NICS). So-called “prohibited people” are also subject to stiff criminal penalties, including up to 15 years in prison, for illegally possessing guns.

Under federal law, these prohibitions include those who have been “adjudicated as a mental defective.” There is a 1973 federal appellate case that explains the archaic-sounding phrase “mental defective” was actually a legal term of art when the Gun Control Act (GCA) was passed in 1968. It referred specifically to “a person who has never possessed a normal degree of intellectual capacity” and was not synonymous with mental illness, generally. That case has never been overruled.

Nevertheless, the government passed a regulation in 1979 that defined “adjudicated as a mental defective” for purposes of the GCA to include:

“A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease … [l]acks the mental capacity to contract or manage his own affairs.”

By exceeding a federal court’s interpretation, that regulation was a legal stretch, whatever one might think of the policy it embodied. And the way the Veterans Administration (VA) has applied it to deprive beneficiaries of their Second Amendment rights has been an even bigger stretch.

Of course, military members who have service-connected disabilities are entitled to benefits from the VA, including disability payments. Sometimes these benefits are paid directly to the veteran. But sometimes the VA determines it would be in the veteran’s best interest for someone else to receive the payments on the veteran’s behalf. This person is called a fiduciary and is usually someone in the veteran’s own household, such as a spouse.

As a bureaucratic matter, the VA must make a “finding” of “incompetency” to assign a fiduciary. That is, the agency must find the beneficiary “lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation” because of “injury or disease.” In most cases, this is a summary determination, sometimes made with the beneficiary’s agreement and sometimes on a VA employee’s own initiative. It is not an “adjudication” in the sense of opposing sides going before a judge to argue about the person’s mental capacity based on evidence submitted by a court-appointed mental-health professional.

Moreover, the determination is strictly limited to the beneficiary’s ability to manage VA benefits and applies only in the VA context. There is no necessary examination of whether the person has the desire or capacity to harm themselves or others. There is no requirement the person be incapacitated in any other respect or unable to exercise sound, rational judgment as a general matter. There is no legal limitation on what the beneficiary can do with his or her money in any other context. The person can still, for example, apply for loans, enter into contracts, make gifts and bequests, etc.

As described by one former VA official, appointment of a fiduciary is often a “box-checking exercise” and may simply be a matter of convenience or of continuing the beneficiary’s normal financial practices. For example, a veteran who often deployed overseas and counted on a spouse to handle the household finances might find it convenient and beneficial to have the spouse receive the veteran’s benefits directly.

Nevertheless, in every case, no matter what the reason is for the veteran receiving benefits or for having a fiduciary appointed, the VA automatically reports the veteran to NICS as a “mental defective.” This means the veteran cannot lawfully purchase or receive a firearm. It also means the veteran could face felony prosecution simply for possessing firearms the veteran already owns.

Once the fiduciary is appointed, the veteran has two choices to save his or her Second Amendment rights.

One is to challenge the fiduciary appointment through a VA appeals process. But this puts many veterans to a false choice. They may need or want help handling benefits but still be able to handle a firearm safely and competently.

The veteran could face felony prosecution simply for possessing firearms the veteran already owns.

The second choice is to petition the VA for restoration of firearms rights. This expensive and time-consuming process, however, forces the beneficiary to undergo a mental-health evaluation at his or her own expense. It also requires the veteran to affirmatively disprove, under a very demanding standard of evidence, something the VA never proved in the first place. That is, the veteran must convince the VA, by clear and convincing evidence, “the record shows affirmatively, substantially, and specifically that the beneficiary is not likely to act in a manner dangerous to public safety and that granting relief will not be contrary to the public interest.” If the beneficiary wants to use a lawyer for this intimidating and intrusive procedure, he or she must pay for that as well. Moreover, the process can take 18 months or more to complete, with the veteran banned from firearm possession in the meantime.

Unsurprisingly, statistics from the VA obtained by pro-gun members of Congress demonstrate that beneficiaries rarely invoke restoration, and, when they do, the VA—which institutionally does not consider private firearm ownership in “the public interest”—almost never grants the relief, anyway.

The bottom line is a system that has existed for 25 years arbitrarily deprives veterans of their Second Amendment rights. In some cases, it might even discourage them from disclosing important information about their circumstances or even seeking help to which they’re legally entitled.

Notably, the Obama/Biden administration passed a regulation to create a similar procedure in the context of Social Security beneficiaries. That move threatened to dump more than four million Social Security recipients into NICS as prohibited persons. Tens of thousands of Americans filed comments objecting to the Social Security Administration’s (SSA) rulemaking. Indeed, it was so outrageous that it drew opposition not just from gun owners and Second Amendment supporters but from other civil rights and disability advocates across the political spectrum. Incredibly, the SSA insisted, “We are not attempting to imply a connection between mental illness and a propensity for violence, particularly gun violence,” but claimed it was still required by law to report the affected beneficiaries as prohibited persons.

Fortunately, bipartisan majorities in both the House and Senate overturned that regulation with legislation President Trump signed into law soon after taking office.

Veterans of America’s armed forces deserve no less consideration than America’s Social Security recipients.

The measures the House and Senate recently voted on to fix the VA problem were both attached to “must-pass” legislation to fund various federal agencies, including the VA. Both deny funds for arbitrary reporting of VA beneficiaries to NICS.

The House version, led by Rep. Mike Bost (R-Ill.), broadly prohibits the reporting of VA beneficiaries to NICS based on the appointment of a fiduciary. The Senate version, led by Sens. John Kennedy (R-La.) and Jerry Moran (R-Kan.), prohibits the VA from reporting beneficiaries to NICS under the “mental defective” prohibitor of the GCA without “the order or finding of a judge, magistrate, or other judicial authority of competent jurisdiction that such person is a danger to himself or herself or others.”

The wording of these measures will need to be reconciled by the conference committee that comes up with the final language of the spending bill. Joe Biden, as anti-gun as he is, will nevertheless likely sign that bill into law to prevent interruptions in the functioning of the agencies whose budgets are at stake. While nothing is set in stone, a fix for the long-running VA gun ban has never been closer.

With all that veterans have done for America, it’s the least that America could do for them.



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