(courtesy thinkprogress.com)

Press release:

WASHINGTON – Senator Chuck Grassley of Iowa, Chairman of the Senate Judiciary Committee, is requesting an explanation for why nearly all of the names on the Justice Department’s gun ban list in the “mental defective” category belong to veterans or their dependents . . .

“It’s disturbing to think that the men and women who dedicated themselves to defending our freedom and values face undue threats to their fundamental Second Amendment rights from the very agency established to serve them. A veteran or dependent shouldn’t lose their Constitutional rights because they need help with bookkeeping,” Grassley said.

All federal agencies are required to report names of individuals to the National Instant Criminal Background Check System’s (NICS) “mental defective” category.  Placement on the list prohibits owning or possessing a firearm.  The legal standard by which a name is supposed to be reported to the “mental defective” category is whether the individuals are a danger to themselves or others.  However, the Department of Veterans Affairs (VA) process does not support such findings.

Instead VA reports individuals to the gun ban list if an individual merely needs financial assistance managing VA benefits.  Although the VA process is not designed to regulate firearm ownership, it results in veterans and their loved ones being barred from exercising their fundamental, Constitutionally-guaranteed Second Amendment rights.

In a letter to Attorney General Eric Holder, Grassley outlined concerns that a number of failures, including the inconsistent application of standards and weak due process protections, are leading to a disproportionate number of names submitted to the gun ban list by the VA. Grassley notes that it appears veterans are particularly singled out and should not be required by the VA to shoulder the entire burden to prove that they have the ability to exercise their Second Amendment rights.

Grassley introduced legislation last Congress that included a provision requiring a judicial authority to find individuals to be a danger to themselves or others in order to be added to the mental defective category within NICS.  This legislation would have effectively overturned administrative actions by the VA to add individuals to the NICS simply because they were unable to manage their financial affairs.

According to Congressional Research data from 2012, 99.3 percent of all names reported to NICS’ “mental defective” category were supplied by the VA.  A 2013 Senate report indicated little change in that statistic.

Text of Grassley’s letter is below.  A signed copy can be found here.

April 13, 2015

VIA ELECTRONIC TRANSMISSION

The Honorable Eric H. Holder, Jr.
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Dear Attorney General Holder:

The National Instant Criminal Background Check System (NICS) is effectively a national gun ban list and placement on the list precludes the ownership and possession of firearms.  According to the Congressional Research Service, as of June 1, 2012, 99.3% of all names reported to the NICS list’s “mental defective” category were provided by the Veterans Administration (VA) even though reporting requirements apply to all federal agencies.   And that percentage remained virtually unchanged as of  April 2013.   Given the numbers, it is essential to ensure that the process by which the VA reports names to the Department of Justice (DOJ) for placement on the NICS list recognizes and protects the fundamental nature of veterans’ rights under the Second Amendment.

Questionable VA Standards

Specifically, once the VA determines that a veteran requires a fiduciary to administer benefit payments, the VA reports that veteran to the gun ban list, consequently denying his or her right to possess and own firearms.  In the past, the VA has attempted to justify its actions by relying on a single federal regulation, 38 C.F.R. § 3.353, which by its plain language grants limited authority to determine incompetence, but only in the context of financial matters: “Ratings agencies have sole authority to make official determinations of competency and incompetency for purposes of: insurance and…disbursement of benefits.”

Thus, the regulation’s core purpose applies to matters of competency for financial purposes in order to appoint a fiduciary.  This financial/fiduciary standard has been employed since the regulation’s initial promulgation in the 1970s and it has nothing to do with regulating firearms.   Most importantly, in addition to the regulation itself, the federal statutory provision granting the VA the authority to promulgate the regulation is squarely focused on financial matters and was not designed to impose firearm restrictions.

Varying Standards

In accordance with the Brady Handgun Violence Prevention Act, the Bureau of Alcohol, Tobacco and Firearms (ATF) adopted a regulation that defined a different standard for firearm regulation than that imposed by the VA.  The standard adopted is a “mental defective” standard that, at its core, allows regulation only when someone is a danger to themselves and/or others.  The regulation itself even states that the standard does not include persons suffering from mental illness but who are not a danger to themselves.

The VA’s regulation appears to omit important findings and never reaches the question of whether a veteran is a danger to himself, herself, or others.  Thus, a VA determination that a veteran is “incompetent” to manage finances is insufficient to conclude that the veteran is “mentally defective” under the ATF’s standard that is codified in federal law.

Due Process Concerns 

In addition, the procedural protections the VA affords to veterans are weak.  First, the standard of review is particularly low for a fundamental constitutional right: clear and convincing.   Hearsay is allowed.   And, there are no significant checks and balances in place to ensure that there is any evidence to conclude that a veteran is a risk to the public or themselves.  Of particular concern, although VA employees can personally meet with veterans and non-veteran dependents who are receiving VA benefits, only when VA personnel meet with veterans are they directed to consider whether competency is at issue.   Thus, it appears that veterans are immediately targeted by VA personnel upon initial contact.

Furthermore, when a veteran receives a letter stating that the VA believes he is unable to manage his finances, that veteran now has the burden of proving that he is in fact competent to manage his benefit payments and does not need a fiduciary.  However, underlying the hearing is a real possibility that the right to firearms will be infringed.  Therefore, in light of the liberty and property interests involved, placing the burden of proof on the veteran is highly suspect.  Under similar circumstances, the burden is generally on the government.  Further, the hearing that takes place is inside the VA administrative system and composed of VA employees rather than a neutral decision maker.

Under the current practice, a VA finding that concludes that a veteran requires a fiduciary to administer benefit payments effectively voids his Second Amendment rights—a consequence which is wholly unrelated to and unsupported by the record developed in the VA process. Accordingly, Congress needs to understand what justifies taking such action without more due process protections for the veteran.

In order to more fully understand the interplay between the differing standards of the VA and ATF, the procedural processes involved, and what effect it has on Second Amendment rights, please answer the following:

1.    Is the primary purpose of the NICS list to preclude firearm ownership and possession by individuals who are a danger to themselves and/or others? If not, what is the primary purpose of the NICS list?

2.    Is the primary purpose of the VA’s reporting system to report the names of individuals who are appointed a fiduciary?

3.    Out of all names on the NICS list, what percentage of them have been referred by the VA?

4.    Do you believe that a veteran adjudicated as incompetent to manage finances and appointed a fiduciary is likewise mentally defective under the ATF standard?  If so, what is the basis for that conclusion?

5.    Does the standard employed by the VA to report names to the DOJ for subsequent placement on the NICS list comply with the protections of the Second Amendment? If so, please explain how, in light of due process concerns described above.

6.    Given that the VA adjudication process can result in a complete infringement of a person’s fundamental Second Amendment right, do you believe that the use of the “clear and convincing” evidentiary standard is proper? If so, why?

7.    Is the DOJ satisfied that all names reported from the VA for placement on the NICS are, in fact and in law, persons who should not own or possess a firearm because they are dangers to themselves and/or others? If so, what evidence supports that conclusion?

8.    Given that 99.3% of all names in the NICS “mental defective” category are reported from the VA, has the DOJ reviewed the VA’s reporting standards and procedure?  If so, please provide a copy of the review that took place.  If no review took place, please explain why not.

9.    What review process does DOJ have in place to ensure that names are  properly on the NICS list?

10.    How many individuals have appealed their placement on the NICS list?  How many individuals were successful in their appeal?

11.    In light of the fact that the Supreme Court has held the Second Amendment to be a fundamental right, has the DOJ changed any processes and procedures relating to the NICS system which were in existence prior to that holding?

12.    Besides the VA, what other federal agencies have reported names to the NICS list since 2005? And how many names were reported by each agency since 2005?

Please number the responses according to their corresponding questions.  Thank you in advance for your cooperation with this request. Please respond no later than April 30, 2015.  If you have questions, contact Josh Flynn-Brown of my Committee staff at (202) 224-5225.

Sincerely,

Charles E. Grassley
Chairman
Committee on the Judiciary

 

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40 Responses to Sen. Grassley to AG Eric Holder: Why Are So Many Veterans on the NICS Gun Ban List?

  1. Yet another reason to get rid of the background checks. We were perfectly fine prior to 1968 without them. If anything, it appears to me that since then, stuff has gotten worse.

    • What do you figure the odds are that Eric (with)Holder will stonewall this one too? Anyone remember the report where they called veterans domestic terrorists?

  2. JFC I’m glad I got my financial act together before I got out. This is just another example of how massively damaging a bureaucratic “screw up” can be. Barred from guns because you need help with your VA loan? Absolutely disgusting.

    • This isn’t about loans. This is people who need help managing their medical retirement pay, or disability payments. Some people need help managing this, doctors appointments, medications, etc. Personally I just pay for a private doctor rather than face the VA

  3. Yo, foolz, we only ‘lowed to hab them gunz when we workin’ for Uncle and Uncle’s bro’s like CitiBank, the oil companies, the oil sheiks, Goldman-Sachs, an’ Boeing.

    We gets home an’ we ain’t chit. davidx done learned that chit forty years ago.

    Mental defectives. Must have been, to sign up at 17.

    Except some of us, actually many of us, take our original oaths of enlistment dead seriously. We’ll see how that works out in the coming years.

  4. So a Senator introduces legislation to compel an agency to obey an already existing legal standard? Got, it.

    ‘gumbmint is awsumz!

    • They need to start sending The Capitol Police out with warrants to pick up ass-hats like Eric Holder and the Ice Director.

      • I’ve already advised my wife to make sure there is no flag on the casket, no three-gun salute, no marker, and nothing on the stone about the military service (eight years, total). Simple RC mass/burial service from the church and out to a semi-abandoned, overgrown boneyard in the woods, plain pine casket. Slate stone with the winged skull on it like my New England ancestors had 350+ years ago. DOB and final date.

  5. “why nearly all of the names on the Justice Department’s gun ban list in the “mental defective” category belong to veterans or their dependents . . .”

    Because we must have been out of our MFing minds to have ever put our faith into any of our government’s worthless BS.

    JWT

  6. And our pinnacle of Justice and legality, Eric Holder, will again give a one fingered salute to Grassley, and stall, delay, obfuscate, obstruct, or just flat out say no to the inquiry.
    And the Republicans will do nothing
    How’d holding Holder in Contempt of Congress work out? And they can’t touch him because The Annointed One will issue an Executive Pardon so fast your head will spin. I miss tar and feathering myself, but alas, we are such a functional Republic with checks and balances, oh wait,. Nevermind.

    • You have nailed it. We shouldn’t be surprised that the 2’nd branch of Federal government consisting of just 1 individual has over-reached far beyond the boundaries of his Constitutional power. Nor should we be surprised that the 3’rd branch consisting of 9 individuals has allowed the executive and legislative branches far exceed their respective boundaries.
      In contrast, we should be shocked that the 1st branch – the popularly-elected legislative branch – couldn’t care less about any individual’s rights. And we – the voters – re-elect every one of them who chooses to run again. The Congress refuses to do anything to check the executive. The Congress refuses to reject lawless nominees; nor does it effectively call them to account when they violate the laws Congress has duly adopted.
      If we might salvage our Federal government it will be through primarying RINOS and voting Democrats out-of-office. It’s up to us as voters. And, alas, we aren’t doing it.

  7. This has to be one of the most disgusting things that I have read on this website. But will anyone who is not invested in gun rights ever hear that 99.3% of the “mental defective” listings came from the VA? No. They won’t hear a peep.

  8. Why Are So Many Veterans on the NICS Gun Ban List?

    Because once you’re done killing for the government, it can’t wait to get rid of you. That’s why the VA treats veterans like sh1t — so they’ll die faster.

    • And since the Obama administration there has been immense pressure to get every veteran to apply for disability for PTSD. They can’t prove you don’t have it so if you claim it you get free money for life.

      Suckers. That free money will cost you your freedom.

      • I’m a vet and cannot count the number of veterans who want me to claim a disability so I can get coin from the government. Ears are shot working on 40 plus aircraft, and part of Gulf 1 who was directed to take med’s for chemical warfare (I did not). Coach what to say to the VA to get 500 buck a month and free campsites on the west coast. As a matter of principle I don’t….but you’re entitled they say. F++K them.

  9. VA=Communist Medicine.
    Really, the VA should be abolished as my Father had great difficulty getting an appointment to get into the Marion IN VA center. He finally gave up and went to Caylor Nickel in Bluffton. This was in the 70s.

  10. This is why veterans will not seek the help from the VA when they really may need it. But I suppose that may be the point.

  11. The VA… no, thanks, I choose life.

    They were incredulous when I declined “TriCare for Life” when I left the service. Stuff like this is why. I’d rather take my chances on the open market than deal with either TriCare or the VA.

    • TriCare is as good as most private insurance. VA care is an excellent example of what the ultimate goal of obamacare looks like.

  12. The current administration views veterans as potential domestic terrorists. And they have found a way to begin disarming their perceived enemy.

    • Stalin jailed many troops returning from the Western Front after WW 2. He was afraid they would expose what they had seen ….. that socialism sucks , and conditions for everyone was generally better in a Free market. Read Gulag Archipelligo .

  13. Damn

    If you already own firearm(s) at the time the decision is made, do you even get a chance to sell them? Or do they expect you to “donate” them involuntarily.

    Forget all that mess. Keeping your Constitutional right has to take priority over a percentage-based disability check.

    Shouldnt have to be either or, though.

    Shame.

  14. And yet they keep signing up. I’m not a history buff, but I’m wondering how many were our armed forces at the outset of WWII, and how many were mustered through volunteering and conscription, and that we defeated two first world military’s simultaneously, and every conflict since then has been against 3rd world countries that for some reason we’ve needed a million man military? Maybe I’m small minded, or ungrateful, or whatever, but to me soldiering isn’t an occupation, it’s a calling, and it’s called on by war, not the chance of war. I’m not a fan of conscription, and it didn’t stop that Vietnam mess from happening, so I guess this is a moot point, but if it were reinstated and would deter these jungle, and now desert, adventures, I’d be all for it. I know if I were conscripted for any of that crap I’d raise hell all the way to Leavenworth rather than go along like some cowed serf to kill folks who don’t need killing.

  15. Unbelieveable an agency whose sole purpose is to assist our warriors serving in the military is working to deny them thier God given right!?! This defintely needs to be stopped ASAP, and those who are on the banned list need to be reviewed individually. How the hell do you treat the very people that defend our freedoms like second class citizens?

  16. So….failing to serve our veteran’s medical needs wasn’t enough for the VA? They have to pour salt in the wound as well with having a hand in denying veteran’s 2nd amendment rights?

  17. I saw the NICS Improvement Act of ’07 for what it was as soon as I read the language of the bill back then. And that was about the time when the TMC docs really started pushing the diagnosis of PTSD on a lot of guys, myself included. I had to fight tooth & nail not to be slapped with that label because I knew exactly what it would mean; total loss of my 2nd Amendment Rights as soon as I picked up my walking papers in ’09. And even though I tried explaining as much to my fellow soldiers & shooting buddies, a lot of guys I knew gladly accepted their PTSD profile because it meant they’d get a nice disability rating from the VA later.
    And sure enough, though most of them are now collecting a nice disability check (70% +), every single one I’ve kept in contact with since then who is on PTSD disability has been barred from buying a firearm, much to their surprise. I tried telling them it wasn’t called the Veteran’s Disarmament Act for nothing; a few even tried arguing with me that it was to keep unhinged civilians like Seung Hui Cho from buying guns, and that the VA would never do veterans dirty like that.
    When the VA nurses & doctors started asking about firearm ownership/access as part of regular vitals screening a few years ago, that was the last straw for me. I’ve since told them to ram their questions sideways, and haven’t stepped foot in a VA clinic since. Even if my guts are falling out I won’t do so, as it seems like frequenting those places is killing vets quicker than if they’d stayed home or went to a civilian hospital.

  18. VA being a kiss ass to political concerns, let their big shot employees make fun of their patients and the Pricks cannot get fire and still get $179,00.00 {14K + a month } and denying benefits to those that deserve them, just so they cam protect their own paychecks! All of my claims were denied about 30 years worth after service in the Nam, fast forward; seems I developed Diabetes and am now 100% medically retired, and my original claim has not yet been addressed!
    Don’t you know that all Vietnam Vets are nuts, mentally challenged, Because of PTSD, TBI, Alcohol Abuse, drug addiction, baby killers, etc! trained hardened Combat Vets scare the Liberals no end because they are not mindless masses willing to do their beck and call, they can think for them selves! and did I forget trained Killers and Weapons Handlers! a friend of mine is in that situation, he ran into financial trouble and has his rights stripped away! a former Marine who who is a better person than all the VA assholes combined! this is Gun Control at its best, this is what the Anti want! so let them have it MOLON LAABE

    • I don’t know if this will work for you or help; all I can do is report what has worked OK for the most part for us here:

      1.) See if you can find out, through a local vets’ group, VA peer support person, or otherwise if there is a lawyer or lawyers in your area who do pro bono work on appealing disability claims. We’ve found that the first time, as with the SSID claims, is almost always denied. But subsequent appeals are seen by different people and have worked, eventually. And once a lawyer gets involved magical wheels start turning, apparently.

      2.) Contact your local Representative’s and/or Senator’s office; may be pointless but worth a try. Nothing ventured, nothing gained. One of ours here is solidly behind veterans and one call to his office or online site has staffers calling us back within 24-48 hours. When he gets involved, those magic wheels roll again.

      Like I say, this has worked for many of us, one or the other or both of these methods. YMMV. And I’m sorry you and so many of us have to get screwed like this; as you know, you’re not alone.

      Welcome home, bro.

  19. I’m active duty and reasons like this is why I don’t go to the military for anything at all. Only unless it’s a physically related medical need. (ie broken bone or anything related)

  20. This is just Islamobama and Gun Runner Holders plan to keep guns from trained mean and women that can stand against government tyranny.

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