Last week, Congress approved a package of legislation to fund various government agencies that corrects a longstanding and shameful practice that had been depriving American veterans of their Second Amendment rights since 1998. The development marked the culmination of a decades-long effort by the NRA to ensure that members of the military with service-connected disabilities could collect the benefits they had earned without fear of forfeiting the right to keep and bear arms. Despite President Biden’s anger over the inclusion of this pro-gun provision in the so-called “minibus” package, he signed the legislation into law on Saturday.
The Department of Veterans Affairs gun ban is a case study of how anti-gun officials opportunistically exploit seemingly benign government programs to advance their objectives. It’s undoing in the 1,050-page spending package, on the other hand, is a case study of sustained pro-gun advocacy in action.
A federal law passed in 1968 prohibits the possession or acquisition of firearms by a person who has been “adjudicated as a mental defective.” The main enforcement mechanism for this law is the National Instant Criminal Background Check System (NICS), which must be queried any time a person makes a retail purchase of a firearm. NICS contains records provided by states and the federal government of people who are prohibited by law from possessing guns.
As explained in a 1973 appellate court opinion 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.
Nevertheless, the ATF in 1979 passed a regulation interpreting this law to apply to 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.”
The Department of Veterans Affairs (VA), meanwhile, administers a system of benefits for veterans with service-connected disabilities. Its own regulations allow those benefits to be received by a “fiduciary” on the beneficiary’s behalf if the VA determines the beneficiary to be “incompetent” to manage his or her finances. These determinations are made by VA officials, most without any special mental health training. There is usually no judicial process involved. The only issue in the VA’s “incompetency” proceeding is the individual’s “capacity to contract or to manage his or her own affairs, including disbursement of funds”. It does not require a finding that the beneficiary is dangerous to self or others, gravely mentally ill, suicidal, detached from reality, etc.
Similarly, a VA finding of “incompetency” in this context is of limited legal effect. It does not, for example, preclude the beneficiary from having his or her own bank account or entering into legally binding contracts. The point is simply to ensure that if the person needs help managing finances, the VA benefits go to someone who can provide that help, usually someone within the beneficiary’s own family or household chosen by the beneficiary himself or herself.
Nevertheless, since 1998 (during the infamously anti-gun administration of Bill Clinton), the VA has been reporting beneficiaries who have been assigned these fiduciaries to NICS as “mental defectives.” This used to occur without any notification to the beneficiary that the government considered him or her legally prohibited from possessing firearms.
More recently, legislation was enacted that required the VA to offer veterans affected by this regime a mechanism to have their Second Amendment rights restored. But that highly bureaucratic process is seldomly invoked and even more seldomly successful. In Fiscal Year 2022, for example, the VA denied every such petition for relief it processed.
The upshot is that hundreds of thousands of veterans have been deprived of their Second Amendment rights without any judicial process and without any findings relevant to their ability to safely possess and handle firearms. The fact that this is happening to the very people who served to protect the safety and constitutional rights of all Americans, and is perpetrated by the very federal department that is supposed to be devoted to veterans’ aid and wellbeing, is particularly outrageous and galling.
Firearms prohibitionists have reacted to the corrective language in the minibus with their usual fear-mongering, insisting the new appropriations provision would allow “mentally incompetent” people to access firearms and suggesting that it will worsen the problem of veteran suicide. Yet those claims misrepresent both the present system and how it would change under the recently enacted legislation.
The current VA system for determining “incompetency” has no necessary relationship to people who are dangerous or suicidal. It asks a different question, whether the person needs help handling VA benefits. And the answer to that question is provided in the first instance by VA employees, not by judicial officials operating according to the usual requirements of due process for someone facing a lifetime loss of a fundamental civil right.
The new language, originally led by Sen. John Kennedy (R-LA) and Rep. Mike Bost (R-IL), corrects both problems by prohibiting 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 both that the beneficiary is given due process under the law and that a relevant finding is made before any VA determination of incompetency results in a loss of Second Amendment rights. If a beneficiary is suicidal and that could be established before a judge, the person could still be reported to NICS.
Another firearm-related provision in the minibus appropriations act reauthorizes the so-called “Undetectable Firearms Act of 1988” (UFA) for a period of seven years. It is true the UFA was originally the product of false hysteria over Glock pistols supposedly being undetectable by the sorts of metal detectors used at airports. But the law meant to assuage that concern was narrowly written and did not ban Glocks or any other commercially available firearms and has not materially impeded firearm development since then. It was, in other words, more symbolic than consequential (as even some gun control proponents admit).
Nevertheless, the UFA’s periodic reauthorizations have repeatedly provided opportunities for gun control advocates in Congress to try to expand the law in ways that would have serious consequences for law-abiding firearms owners – this time was no exception. So the ultimate decision to hold the line and reauthorize the original language was a strategic effort and takes the issue off the table for a significant period of time. Firearm prohibitionists keep their symbolism, but gun owners more importantly retain their freedom.
Appropriations bills are considered “must-pass” legislation because they fund the operations of government. Without their passage, the entire federal government grinds to a halt. They therefore provide opportunities to either gain or lose progress on issues like the Second Amendment through riders that are inserted into the legislative text. Thanks to the pro-gun leadership in Congress, and the determined work of the NRA, this year’s minibus appropriations package delivered significant wins for the right to keep and bear arms. It is one more example of the never-ending work that goes into protecting fundamental rights from government encroachment.
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