Recently, the 2nd Amendment advocacy organization, Gun Owners of America (GOA) submitted a petition to the U.S. Department of Veterans Affairs, on behalf of “over a quarter of a million veterans” who have had, possibly unbeknownst to them, their gun rights stolen from them:
“For years, GOA has fought against VA’s practice of submitting names of veterans who need a fiduciary to the National Instant Check System (NICS), effectively banning these veterans from owning guns,” Aidan Johnston, Director of Federal Affairs for GOA, said. “It’s a disgrace to infringe the rights of those who have taken up arms for our country abroad, only to have that right taken away when they return home.”
Basically, since the Clinton Administration, the VA has been engaging in a policy of proactively causing the loss of gun rights for military veterans who require assistance with the management of their financial affairs, and appoint a fiduciary, such as is common with temporary bouts of PTSD for returning combat veterans. The GOA has been killing it lately in their efforts at protecting the 2nd Amendment. They’re trying to fix this injustice.
Here’s the filing in its entirety:
The proposed rule would prohibit the VA from transmitting information about a VA beneficiary to law enforcement agencies, and specifically the National Instant Background Check System (“NICS”) run by the Federal Bureau of Investigation, solely and simply due to an appointment of a fiduciary to manage the finances of a beneficiary, without a judicial order in accordance with 18 U.S.C. § 922(g)(4).
Federal law prohibits the receipt or possession of a firearm or ammunition by anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution.” 18 U.S.C. § 922(g)(4). Federal law prohibits the receipt or possession of firearms or ammunition by anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution” in 18 U.S.C. § 922(g)(4). In 19976 and later in 2014,7 the BATFE expanded the definition of “adjudicated as a mental defective” to also 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: (1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs.”
The problem is, that the VA is triggering this definition via their internal fiduciary determination process, which is occurring wholly without due process or judicial involvement or review.
This low standard, based upon a bureaucratic determination, is not commensurate with the BATFE’s higher standard of a determination by an authority such as a court that a person is for example of subnormal intelligence or a danger to others. The VA’s seriously flawed interpretive guidance sweeps up for reporting to NICS a host of persons who Congress never intended to disarm. Commitments and adjudications are done by the judicial system, not by VA bureaucrats. And the terms “mental defective” and “committed” apply to persons who, as a result of a marked subnormal intelligence or capacity, are permanently unable to function in society and historically were often institutionalized.
So what’s happening is this: a combat veteran returns from deployment and temporarily suffers from mild post-traumatic stress – even temporarily – and even if they rely on a family member to assist them with their finances, or balancing their checkbook, they are coming within the broad Department of Veteran Affairs definition, which is in turn coming within the definition of federal and state criminal statutes prohibiting the possession of firearms on mental health grounds.
This has been happening because, since 1998, the Clinton Administration DOJ began reporting to the FBI, for addition in the NICS index those beneficiaries who require a fiduciary to manage their VA benefits under VA regulations. In 2016, Congress provided for some due process protections in that bureaucratic framework in the “21st Century Cares Act” requiring notice and a hearing, and an opportunity to present a defense. However, the case remains that we are unnecessarily subjecting our veterans to a loss of their gun rights with a lower standards than the rest of the American population.
In contrast to Section 922, which pertains to disarming those “adjudicated as a mental defective or who ha[ve] been committed to a mental institution, 38 C.F.R. § 3.353’s determinations of incompetency pertain to the capacity of a veteran “to contract or to manage his or her own affairs, including disbursement of funds without limitation,”10 for the specific purposes of insurance and disbursement of benefits, and are made according to “the beneficiary’s social, economic and industrial adjustment.” 11 Not only the standard, but the intention and scope of the criminal statute, used to justify reporting veterans in the fiduciary program to the NICS database, differ from those of the VA regulation so substantially as to make clear the inapplicability of the VA fiduciary process as a reasonable determination of “mentally defective” requiring reporting to the NICS database.
The GOA’s proposed change in VA rules would prevent this from happening, and would protect the 2nd Amendment rights of veterans – or at least make them equal to the rest of us. They could still be adjudicated mentally defective, as with anyone else. But there would be no systematic deprivation of rights, such as has existed since 1998.
Then, on top of this, some states have enacted, or attempted to enact, so-called “Red Flag Laws,” such as the one enacted in Virginia, which allows “authorities to convince a judge that a person would be a danger to themselves or others….” and does so in the absence of due process, but rather based on the word of some other individual. What follows, is law enforcement being sent to the individual’s home to confiscate guns. There have already been innocent people killed as a result of these laws, such as occurred in Maryland. The fact is, there are over 1.6 million disabled veterans with service-connected adjudication by the VA of “mental illness,” including one million vets with PTSD. These determinations, if and when made, should be made on a case-by-case basis, and should not be systematic, nor made by bureaucrats at the VA, or elsewhere.