Last week we reported on a major breakthrough on behalf of veterans who risked losing their Second Amendment rights because of a long-running scheme by the Department of Veterans Affairs (VA) to report certain beneficiaries to the federal background check database as prohibited “mental defectives.” As we noted, a rider in the “minibus” appropriations package to fund various federal agencies prohibits use of funds for such reporting unless a judge has found the veteran to be a danger to self or others. Despite the provision having been openly negotiated, passed with bi-partisan support, and signed into law by Joe Biden, a partisan coalition of anti-gun Congressional Democrats – all but two of whom actually voted for the spending package – is now leaning on the VA to ignore or undermine the rider. In doing so, they are using the usual anti-gun tactics of fearmongering, misinformation, and gaslighting.
The attempt came in a March 13 letter spearheaded by Rep. Mike Thompson (D-CA), chairman of the so-called House Gun Violence Prevention Task Force, to the Secretary of the VA, Denis McDonough, and was signed by 138 Democrat members of Congress. Incredibly, Thompson had bragged of signing the minibus package and securing funding for various projects in his District only one week earlier. Such is the inexhaustible hypocrisy of politicians who not only refuse to be accountable for their own votes, but who then demand others to cover their political tracks.
The claims in the letter, unsurprisingly, do not hold up to scrutiny and in some cases actually lend support to the rider itself.
For example, the letter states: “The current process used by the Department of Veterans Affairs (VA) to make a competency determination as required by law, includes an opportunity for appeals, helps ensure that veterans who are a danger to themselves or others are flagged in the background check system if they try to purchase a firearm.”
It's true that statutory law allows the VA to make a “competency” determination for the process of administering its own system of benefits. But that determination has no legal effect outside of that context. As the VA states on its own website, “The determination that you are unable to manage your VA benefits does not affect your non-VA finances, or your right to vote or contract.” This makes sense, as it is a purely administrative procedure that contains no adversarial process unless the beneficiary decides to challenge the action after the fact.
Even then, these appeals are processed in the first instance by the VA itself. And it makes perfect sense for some beneficiaries to have a fiduciary, while also legally possessing firearms. The insinuation that standards for assigning a fiduciary take into an account a veteran’s propensity for posing a physical danger to self or other is patently false. The statutory trigger is the individual’s “capacity to contract or to manage his or her own affairs, including disbursement of funds”. As explained by one former VA official who spoke to the NRA, this determination is more of a “box-checking exercise” than a formal adjudication, and it has no necessary relationship to suicidal or aggressive tendencies.
The letter continues, “At a time when veteran suicide remains a terrible crisis, we should not be making it easier for veterans who are a danger to themselves or others to access firearms.”
Again, the authors are intentionally and dishonestly conflating the issues of suicidal tendencies and dangerousness with the separate issue of financial acumen. It is actually the rider itself that insists on a judicial finding of dangerousness to trigger the reporting process. If it were true that every beneficiary who is assigned a fiduciary is also suicidal or dangerous, there should be little to fear by requiring the government to establish this fact in a proceeding before a judge. But the relationship of financial acumen to danger to oneself or others does not hold up; the anguish of the letter’s signatories comes not from dangerous people having access to firearms but simply from a wide-ranging gun ban being curtailed.
The letter goes on with a subtle threat that beneficiaries with fiduciaries could still be prosecuted under the law, whether they are reported to NICS or not:
Perversely, the Kennedy Amendment is not only a threat to the physical health of veterans, but also threatens to put troubled veterans into legal jeopardy. When the VA makes a determination that a veteran is “mentally incompetent,” the veteran automatically becomes a ‘prohibited purchaser’ under longstanding federal regulations, thereby making it a felony for the veteran to purchase a firearm. This is true whether the firearm is purchased in a private sale or through a licensed dealer, and it is true whether or not the VA has submitted information about the mental status of the veterans to NICS.
This threat, however, is based on a misreading of the underlying statute (the Gun Control Act of 1968), which requires an “adjudication” of “mental defectiveness.”
First, it is highly doubtful the VA’s administrative “box-checking exercise” of assigning a fiduciary is the sort of “adjudication” that could validly trigger a lifetime loss of a fundamental constitutional right, including the right to keep and bear arms. Ironically, the Biden administration itself admitted as much in a recent oral argument before the U.S. Supreme Court on the issue of whether the Second Amendment allows the government to prohibit firearms possession for a “misdemeanor crime of domestic violence.”
Justice Thomas asked the lawyer arguing for the government: “This is a judicial determination here [i.e., that a person has met the prerequisite that triggered the gun ban]. Would you be able to make the same arguments [i.e., about the ban’s validity] if it had been a --an administrative determination?”
The government’s lawyer acknowledged that she could not:
I think it would be far more difficult to defend an executive branch or an administrative determination because of a separate Second Amendment principle that guards against granting executive officials too much discretion to decide who and who cannot have firearms.
In the --there was some history about that in --in England, of course, but in the American legal tradition, these principles have been deployed through legislative judgments or through express judicial findings of dangerousness. So I don't think that we could point to the same history and tradition of giving executive branch officials that discretion.
Also, there is the issue of whether a finding of financial “incompetency” – including one that is supposedly based on “mental illness, incompetency, condition, or disease” – is tantamount to “mental defectiveness” in the relevant statute. A leading federal appellate case on the issue indicates it is not.
As explained in the 1973 opinion U.S. v. Hansel on the meaning of this archaic language, the term “mental defective” refers to “a person who has never possessed a normal degree of intellectual capacity”, and does not refer generally to mental illness or mental insanity. Under this reading of the statute, the VA’s scheme and the underlying ATF regulation on which it is based exceed the scope of the statute. This may well be why the VA has been content to report beneficiaries to NICS so they cannot make retail gun purchases, rather than referring them for prosecution. The VA may fear its reading of the law would not hold up under the scrutiny of a criminal case.
As we have mentioned in the past, the Obama/Biden administration also sought by rulemaking to impose a similar regime of disarming financial “incompetents” in the case of Social Security recipients, a move that was promptly overturned by legislation signed into law by President Trump. Notably, this legislation was broadly supported across the political spectrum by mental health and civil liberties advocates who noted the rule was based on stereotypes, not science, and risked increasing the stigma around those who seek help for various conditions.
Perhaps most egregiously, the letter even suggests the VA could continue to its unconstitutional reporting of beneficiaries to NICS under the pretext that funding for doing so comes from “prior year funds”, and not the VA’s current appropriation. It is unconstitutional and illegal to expend funds from the Treasury without a Congressional appropriation. And in the unlikely event that the VA would claim it had excess money sitting around from its prior fiscal year appropriation, only a gun control advocate would assert it would best be used to deprive veterans of their Second Amendment rights, rather than for the VA’s benign core functions. Fiscal hawks in Congress should take note if the VA suddenly claims it was appropriated more money than it could spend in the prior cycle.
The letter also requests Secretary McDonough to “complete a study on veterans who are determined to be ‘mentally incompetent,’ and the veterans who die by suicide or are involved in incidents of gun violence.” This is tantamount to an admission that no existing evidence provides a link between those groups.
Finally, the letter urges the VA to “make full use of state extreme risk protection order laws to flag concerning behaviors from veterans.” But if the VA were to have sufficient information to establish dangerousness before a judge, the terms of the rider itself would allow it to act. This reveals that the signatories of the letter either don’t know what the rider they voted in favor of and are now seeking to undermine actually does, or they are disingenuously trying to create confusion about it. Either way, it does not speak well of their current effort.
It is not surprising that anti-gun Democrats give pro-gun legislation they voted for no more respect than judicial decisions from cases they bring, and then lose, in court. In both cases, it takes sustained vigilance and work to ensure that pro-gun victories are given real-world effect. That is the work of your NRA, and we will be monitoring the implementation of the VA’s new funding rider closely.
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