A few months ago, I wrote about a historic bipartisan agreement to correct a shameful practice by the Department of Veterans Affairs (VA) that has cost hundreds of thousands of former service members their Second Amendment rights. I can happily report that agreement has now been signed into law. This marks the culmination of an effort by the NRA to right a wrong that had been ongoing since 1998.
Veterans seeking help from the VA for service-connected disabilities deserve to know they will be treated fairly and transparently. But it has become a well-known fact that this help can come with a serious catch: a lifetime loss of the right to keep and bear arms. This has contributed to a climate of fear and distrust between veterans and the VA, and, in some cases, may even discourage veterans from seeking help or disclosing information relevant to that process.
As I explained in my prior article, the underlying issue is a federal law that prohibits the acquisition or possession of firearms by a person who has been “adjudicated as a mental defective.” This archaic-sounding phrase was, at the time the law was passed in 1968, a term of art that meant the person was found by a court to have an irreversible intellectual disability. As explained in the 1973 federal court opinion United States v. Hansel, the phrase did not apply to mental illness generally.
Nevertheless, the precursor to the modern ATF passed a regulation in 1979 interpreting this phrase to apply not only to court adjudications but to “determination[s]” by “board[s], commission[s], or other lawful authorit[ies]” that a person “[l]acks the mental capacity to contract or manage his own affairs” for reasons that include not just intellectual disabilities but also “mental illness, incompetency, condition, or disease.”
Twenty years later, the FBI had established the National Instant Criminal Background Check System (NICS) pursuant to the so-called Brady Bill. This law requires anyone making a retail gun purchase to undergo a background check through NICS. The states and federal government are supposed to supply NICS with records of persons who are legally prohibited from having firearms.
Meanwhile, what is now the Dept.of Veterans Affairs, in issuing disability payments to its beneficiaries, sometimes assigns those payments to a “fiduciary” on the beneficiary’s behalf. This is usually a spouse or someone else in the beneficiary’s household who is entrusted to receive the payments and administer them for the good of the beneficiary. But assigning a fiduciary requires the VA to take the bureaucratic step of finding the beneficiary “incompetent” to “contract or to manage his or her own affairs, including disbursement of funds.”
This created a trap for unwary veterans, because this finding of supposed “incompetency,” which was only reported to the beneficiary after the fact, would then be reported to NICS as an “adjudication” of “mental defectiveness.”
For years, this reporting happened without veterans even being informed of it. Many found out only when they attempted to buy a gun. Beginning in 2007, however, a series of laws required greater transparency and granted affected beneficiaries the opportunity to petition for restoration of their Second Amendment rights. Nevertheless, these petitions are processed by the VA itself, and the rules it established stacked the deck against relief. The result was that few people even attempted this intimidating, bureaucratic process, and those that did almost never succeeded. In Fiscal Year 2022, for example, the VA denied every such petition for relief it processed.
The NRA has for decades supported both administrative and legislative proposals to correct this injustice. But firearm prohibitionists have disingenuously fearmongered about supposedly dangerous “incompetents” with guns, even though these decisions are based on financial acumen, not suicidal or aggressive tendencies.
This year, however, the NRA supported an agreement to include language in “must-pass” government-spending legislation that prohibits the VA from reporting beneficiaries to NICS as “mental defectives” 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.”
This ensures beneficiaries get the benefit of both due process and a relevant finding before adverse action can be taken against their Second Amendment rights. And if the VA can establish before a judge that a veteran is in fact dangerous, it can still take appropriate action.
It was a long time coming, but now those who fought for America’s rights can seek the help they need knowing their own rights will also be protected.
