Last week, Sen. Chuck Grassley (R-Iowa) brought renewed attention to the plight of a growing number of veterans who have been unjustly stripped of their Second Amendment rights. In an April 14 letter to Attorney General Eric Holder, Sen. Grassley takes the Department of Veterans Affairs to task for overreaching policies that have resulted in the names of well over 100,000 veterans and dependents being placed in the FBI’s National Instance Criminal Background Check System (NICS) as prohibited from possessing firearms.
Federal agencies are required to forward information to the FBI about individuals who have been disqualified by agency action from legally possessing firearms. This includes information about disqualifying mental health “adjudications” and “commitments.” The VA’s interpretation of what constitutes a disqualifying mental health “adjudication,” however, has resulted in widespread, unjustified deprivation of Second Amendment rights and Fifth Amendment due process rights.
As Grassley’s letter points out, federal regulation allows the VA to determine whether its beneficiaries need a “fiduciary” to manage their benefits. Veterans who the agency determines need help administering their VA compensation are then labeled “mental defectives” and reported to NICS to be barred from firearm acquisition and possession, alongside the likes of felons, fugitives, and the dishonorably discharged. The process of assigning a fiduciary, however, does not require the VA to consider whether the veteran actually poses a danger to himself or others or is seriously functionally impaired in any other respect. Indeed, the VA’s own website states, “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.”
Needless to say, it’s completely untenable that America’s military men and women must choose between what’s best for their medical care and financial management and the fundamental civil liberties their own service protects. The fact that a veteran’s spouse or other loved one is more financially astute or is simply more accustomed to maintaining the household finances is completely irrelevant to the veteran’s ability safely and responsibly to handle firearms. That the VA claims otherwise reveals nothing so much as its own systemic, institutional anti-gun bias and its distrust of the very people the agency serves.
For veterans who choose to contest the appointment of a fiduciary, VA procedure offers scant protection. Typically, deprivation of a fundamental constitutional right requires significant due process, as required by the Fifth Amendment (for example, a criminal trial). As Grassley’s letter makes clear, the procedure VA employs falls well below acceptable due process standards and places the burden of proof upon the veteran to seek redress after the fact.
In an April 21st, 2015 article for the Daily Caller, entitled, “VA Sends Veterans’ Medical Info To FBI To Get Their Guns Taken Away,” journalist Patrick Howley puts a human face on this tragedy. In one instance, disabled veteran Henry Wrobel was categorized as unable to handle his own finances, triggering the firearm prohibition. The VA’s actions followed Wrobel’s conversation with a VA counselor during which he mentioned having recently opted to receive his benefits by direct deposit in an attempt to simplify his life. In another case, a Vietnam War widow receiving VA benefits was deprived of her right to bear arms after making a request to the VA for assistance in obtaining someone to help with her household chores after she suffered a mild stroke.
Beyond this matter’s constitutional concerns is that the VA’s “mental defective” determination process and forwarding of records to NICS have contributed to a deep distrust of the agency among those it serves. Rumors abound regarding VA measures to strip gun rights from veterans, and current VA practices regarding fiduciary appointments, along with highly suspect efforts, substantiate these concerns. Undoubtedly, some veterans have chosen to forego vital benefits and medical treatment, or have been less than candid with VA personnel, due to a fear of losing their Second Amendment rights.