Last Wednesday, the Subcommittee on Disability Assistance and Memorial Affairs of the House Veterans Affairs Committee held a legislative hearing on a number of proposed bills that would change various procedures and standards for how the Department of Veterans Affairs (VA) does business. The VA, of course, is a creation of Congress, as are the statutes that empower, guide, and fund its activities.
Yet as is characteristic of many government agencies, the VA has formed its own agenda, born of deeply entrenched bureaucrats with their personal ideas about how government should operate. One glaring example of this is the department’s focus on gun control, a priority that is not only unrelated to its core mission but puts the VA at odds with many of the veterans its serves, who deeply value the right to keep and bear arms. In a stunning example of bureaucracy run amok, VA officials brazenly told incredulous members of Congress at Wednesday’s hearing the VA “could not” and “would not” comply with proposed legislation aimed at reining in this unauthorized mission.
We have been reporting on the VA’s unauthorized gun control activities for many years, as well as advocating for legislation to end these abuses. The origins of the issue date back to the Gun Control Act of 1968 (GCA), which created categories of persons who are prohibited from receiving or possessing firearms. Among these are those who have been “adjudicated as a mental defective.” As explained in the leading federal appellate case to examine that term (decided approximately five years after the GCA’s enactment), that phrase as of 1968 was a term of art meaning “a person who has never possessed a normal degree of intellectual capacity”. The court contrasted this with “an insane person,” which it described as one whose “faculties which were originally normal” but “have been impaired by mental disease.” The court made clear that “mental defectiveness” is not synonymous with “mental illness.”
Nevertheless, when ATF (under the notoriously anti-gun Clinton administration) proposed a regulation to define “mental defective” in 1996, it ignored that case and focused on others that generally indicated the GCA was broadly meant to keep firearms away from persons who were “potentially irresponsible and dangerous.” In its determination to cast as broad a regulatory net as possible, the ATF specifically mentioned the definition of “mentally incompetent person” used by the VA in administering its own system of disability benefits. “That definition,” ATF noted, “covers persons who because of injury or disease lack the mental capacity to contract or manage their own affairs.” Such persons, according to VA’s underlying statutes, can be assigned a “fiduciary” to manage their benefits.
When the FBI was setting up the National Instant Criminal Background System (NICS) in the late 1990s, it entered into a memorandum of understanding with the VA for the VA to provide records of its beneficiaries who were appointed fiduciaries. Such person, according to the agreement, would be treated as prohibited “mental defectives” for purposes of NICS background checks.
The ATF’s regulatory interpretation of “mental defective,” however, has never been approved by any federal appellate court, while at least one lower court has squarely rejected it.
Nor has that regulatory definition proven uncontroversial with Congress. Over the years there have been numerous measures designed to clarify that relevant “adjudications” must include a judicial finding that the person is a danger to self or others. Such a provision finally passed into binding law with an appropriations rider attached to this year’s Consolidated Appropriations Act to fund the government. That rider prohibits ATF from reporting beneficiaries to NICS as “mental defectives” unless a judicial order or finding of dangerousness has been made.
As Wednesday’s hearing made clear, however, the anti-gun fervor in VA that took root during the Clinton administration has become a deeply-entrenched part of the Department’s culture. So much so, in fact, that the VA’s testimony at the hearing made clear it would not recognize its misinterpretation of congressional law, even at the command of Congress itself.
One of the bills considered at Wednesday’s hearing was the Veterans’ Second Amendment Restoration Act of 2024 (SARA). The act’s very purpose is to repudiate the VA’s longstanding misapplication of the law and to ensure the FBI is apprised that NICS contains unauthorized records from the VA of mis-reported “mental defectives.” Under its terms, the VA would be required, within 30 days of the bill’s enactment, to:
notify the Attorney General that the transmittal by the Secretary of Veterans Affairs, of personally identifiable information of a beneficiary, solely on the basis of a determination by the Secretary to pay benefits to a fiduciary … without any order or finding of a judge, magistrate, or other judicial authority of competent jurisdiction that such beneficiary is a danger to themselves or others … for use by [NICS] … was improper under the law because such individuals were not adjudicated as a mental defective under [the GCA].
Having created the “mental defective” prohibition, as well as NICS, Congress is certainly entitled to notify federal departments and agencies involved in the administration of those laws that they have misinterpreted them and need to take corrective action.
Incredibly, however, VA insisted at Wednesday’s hearing in both written and oral testimony that it “could not” and “would not” comply with such a congressional mandate, based on its own interpretation of “mental defective” and its own belief that gun control is central to its mission. VA’s written testimony stated:
VA’s reporting was not improper. Mentally incompetent beneficiaries are prohibited persons under the Gun Control Act pursuant to the ATF’s regulatory definition. …
This bill would thus require the Secretary of Veterans Affairs to erroneously notify the Attorney General that it erred by reporting incompetent beneficiaries to NICS. VA did not err; if this bill is passed into law, the Secretary of Veterans Affairs could not comply.
That same defiant refrain was repeated by a VA bureaucrat responsible for administering the VA’s fiduciary operations, who repeatedly affirmed at the hearing that VA would not comply with SARA, were it to become law. The controlling considerations, according to that official, were the directives of the VA secretary, based on a legal interpretation adopted by the VA and affirmed by the Department of Justice (yet another creature of congressional legislation).
Committee members were aghast and peppered the VA official with attempts to allow him to correct or clarify his position. They even admonished him to consider the legal implications of the position he was taking and to consider his ultimate allegiance to the U.S. Constitution, under which Congress makes the laws that are merely administered by the executive branch. But the official seemed either unable or unwilling to appreciate the import of the position VA was taking and stuck to department’s official line of noncompliance.
The VA’s testimony also made clear that it considers participating in red flag gun confiscation proceedings to disarm the very veterans it serves to be an integral part of its mission and would oppose any congressional attempt to curb its ability to do so. The VA additionally insisted that its personnel must be available to testify against veterans in proceedings related to protective orders brought by others that could result in the disarming of those veterans.
Besides congressional action on these issues, the U.S. Supreme Court itself has recently issued decisions relevant to the VA’s authority to become a self-appointed anti-gun enforcer. In one case, the court discussed the sorts of proceedings that could result in forfeiture of Second Amendment rights and held: “An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” Importantly, however, the court explicitly rejected in that same case the government’s assertion that a person could likewise be disarmed based on a lack of “responsibility.” The VA acknowledges that its own findings of “incompetency” are based on the wherewithal to responsibly handle benefits and have no necessary relationship to a propensity for dangerous or self-destructive behavior.
In another case, the Supreme Court overruled a doctrine that had been used to vastly expand the ability of administrative agencies to enforce their own interpretations of federal statutes. In doing so, the court observed that “agencies have no special competence in resolving statutory ambiguities,” while “[c]ourts do.” This makes the ATF’s and VA’s interpretation of “mental defective,” which is at odds with court decisions rendered shortly after the GCA was enacted, even more suspect.
The VA’s intransigence on interfering with veterans’ Second Amendment rights is a longstanding scandal. Fortunately, progress has recently been made in curbing these abuses. Nevertheless, more work obviously remains to be done before the VA will finally be cured, kicking and screaming, of a gun control fixation that is not only unnecessary to its core mission but interferes with that mission by creating disincentives for veterans to seek the VA’s help. Last Wednesday’s hearing made abundantly clear the mounting urgency to relieve the VA, once and for all, of its anti-gun delusions and ambitions.
Members of the House Committee have already sent a letter to VA Secretary Denis McDonough, apprising him of the hearing’s testimony and demanding that he reassure the committee that VA will comply with the Veterans 2nd Amendment Restoration Act of 2024, should it be enacted into law.
We will report any updates on this situation as they become available.
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