The VA Is Restricting Veterans’ Gun Rights Without Due Process
From The Hill Blog — The Department of Veterans Affairs (VA) has placed gun restrictions on thousands of veterans without due process, and Congress needs to address the matter. It is quite ironic that under VA policy, the men and women who protected our nation in the armed forces are effectively becoming disarmed by unaccountable government employees.
Nearly a decade after the failed assassination attempt on President Reagan, which occurred in 1980, Congress passed the Brady Handgun Violence Prevention Act to try and prevent mentally ill people from committing acts of gun violence. (The law was dedicated to a key member of the president’s staff who was critically injured in that shooting).
One government policy born from this landmark law directed the Bureau of Alcohol, Tobacco and Firearms (ATF) to identify people who were a danger to themselves or others, and to label these individuals “mentally defective.” The ATF can now use this power to make determinations that certain people are mentally defective and thus prohibit individuals in this category from owning or purchasing firearms or ammunition.
Several federal agencies, most notably the U.S. Department of Justice (DOJ), are responsible for tracking and administering federal laws in order to protect the public from gun violence. The intent of these laws is to create a safe public environment and is for the good of society.
However, the VA has used law to the detriment of many veterans in its implementation of one particular category of benefits (fiduciary designations) and the end result has been a massive gun ban for thousands of veterans. These actions have not been clearly implemented within the scope of federal law or explained clearly enough by government officials to convincingly alleviate concern that this is not simply an arbitrary barricade to the 2nd Amendment within the veterans’ community.
Thousands of veterans, for a variety of reasons, have become unable to manage their financial affairs and may be appointed fiduciaries, often family), to receive and manage their federal benefits (which they receive from the VA) on their behalf. Some of these veterans have sustained head injuries, suffer from memory issues or have a variety of other conditions enabling the government to allow them to appoint someone to help manage their government benefits.
The VA, in making the determination that a veteran requires a fiduciary to help them manage their money, is additionally making the decision that the veteran cannot handle a firearm, either. The VA is not conducting an evaluation to determine whether a veteran is a threat to himself or herself or others, requiring a medical determination verifying the veteran is displaying signs of violence, or notifying the veteran his or her Second Amendment rights are being eliminated. The VA simply reports the veteran to the federal National Instant Criminal Background Check (NICS) system and makes the “mentally defective” judgment of the veteran by default.
The VA is using federal laws in a manner that is invalid and lacks proper oversight and fairness. Further, the Brady Act even specified that people who suffer from mental illnesses are not designated “mentally defective”; therefore, it becomes more obvious that the VA has stepped out of bounds on this issue.
The VA does not provide due process and no clear standard exists as the agency basically declares a veteran guilty until proven innocent of a condition that has not been verified by an appropriate entity (doctor and judge). Basically, if you are appointed a fiduciary to help you with your money, a VA bureaucrat takes your gun rights away and the burden of proof is on the veteran to get his or her right to possess a firearm back.
I am aware of legislation in both the House and Senate that would require a judicial determination verifying a veteran poses a threat to society or himself before gun rights are eliminated by the VA. However, public attention to veterans’ gun rights issues has been limited, and without more engagement from veterans nationwide, the VA may continue to expand its murky actions into other categories of our lives. Many legal experts I have spoken to do not believe the VA has the statutory power to stand by these actions and congressional legislation could clarify and fix these government encroachments.
It is not likely this issue will be resolved this year, as Congress has limited time to finish its work before the nation goes to the polls in November. That being said, as this Congress closes and a new Congress is sworn in next January, the issue of veterans’ gun rights must be resolved in order to make certain that the men and women who defend our freedom do not have their Second Amendment rights stripped away by government employees without fair and transparent due process. It would be a sad irony if the agency created by Congress to help veterans would be a barricade toward veterans enjoying the very freedom they defended.
Neiweem is an Iraq War veteran, defense and military policy analyst, and executive director of the Neiweem Group, a government affairs firm. He has served as an expert witness in Congress before both House and Senate Committees and regularly appears on radio and television, covering issues that impact the military and veterans population.