Correcting VA’s Violations of Veterans’ Due Process and Second Amendment Rights

House Veterans' Affairs Subcommittee on Disability Assistance and Memorial Affairs

2025-01-23

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Source: Congress.gov

Summary

The Subcommittee on Disability Assistance and Memorial Affairs convened a hearing to examine the Department of Veterans Affairs' (VA) practice of reporting veterans assigned fiduciaries to the National Instant Criminal Background Check System (NICS), which impacts their Second Amendment rights. The discussion highlighted concerns about due process, veteran suicide prevention, and the efficacy of the VA's fiduciary program.

Themes

Violations of Veterans' Constitutional Rights and Due Process

The VA's practice of reporting veterans who need fiduciaries to manage their finances to the NICS list strips them of their Second Amendment rights without a judicial ruling or medical finding that they pose a danger to themselves or others. This policy has affected over 250,000 veterans over two decades, who are consequently prevented from possessing or purchasing firearms. <citation data-start-id="8.1" data-end-id="9.2"></citation>, <citation data-id="11.1"></citation>, <citation data-start-id="11.3" data-end-id="11.4"></citation> Witnesses argued that this practice violates various constitutional amendments, including the First, Fourth, Fifth, and Fourteenth, treating veterans unequally compared to other citizens. <citation data-start-id="29.1" data-end-id="33.1"></citation> A temporary legislative provision currently prohibits the VA from using funds to report veterans to NICS without a court ruling, but Congress is urged to establish a permanent solution. <citation data-start-id="12.10" data-end-id="12.11"></citation>, <citation data-start-id="21.26" data-end-id="21.27"></citation> Concerns were raised that this process erodes trust in the VA and may deter veterans from seeking necessary mental health care. <citation data-id="34.1"></citation>, <citation data-id="88.3"></citation>

Veteran Suicide and Mental Health

The subcommittee acknowledged the sobering statistics on veteran mental health and suicide, noting that 73% of veteran suicides involve firearms. <citation data-id="16.19"></citation>, <citation data-id="53.28"></citation> It was highlighted that veterans assigned fiduciaries are at a significantly higher risk of suicide than the general veteran population. <citation data-start-id="16.32" data-end-id="16.34"></citation> While some argued that restricting firearm access could prevent suicides by creating "time and space" during a crisis, others countered that such policies stigmatize mental illness and may discourage veterans from seeking care for fear of losing their rights. <citation data-start-id="16.29" data-end-id="16.30"></citation>, <citation data-start-id="110.11" data-end-id="110.12"></citation>, <citation data-start-id="130.12" data-end-id="130.13"></citation> The need for lethal means safety counseling training for both VA and community care providers was suggested as a preventative measure. <citation data-start-id="106.12" data-end-id="109.3"></citation>

Fiduciary Program Process and Proposed Improvements

The VA's determination of "mental incompetency," which leads to NICS reporting, is based on a veteran's inability to manage finances due to a disability, rather than a finding of dangerousness. <citation data-start-id="21.17" data-end-id="21.19"></citation>, <citation data-id="12.1"></citation> Witnesses questioned the adequacy of the current process, noting that veterans may not be fully informed of the implications or their appeal rights. <citation data-start-id="69.1" data-end-id="73.6"></citation> Recommendations for improving the process included: requiring a second medical exam to confirm incompetency and assess harm risk; implementing two-person field examiner teams; reassessing all COVID-era virtual fiduciary assignments; simplifying VA notification letters; and requiring a judicial review before NICS referral. <citation data-start-id="51.5" data-end-id="51.23"></citation> Statistics show that very few veterans successfully appeal these determinations or obtain relief from firearm prohibitions, indicating significant roadblocks in the appeals process. <citation data-start-id="51.26" data-end-id="51.30"></citation>, <citation data-id="95.1"></citation>

Tone of the Meeting

The meeting's tone was serious and largely respectful, with speakers generally maintaining decorum despite strong disagreements. <citation data-id="16.1"></citation>, <citation data-id="15.1"></citation>, <citation data-id="53.1"></citation> There was a palpable sense of passion and concern for veterans' well-being, with several speakers sharing deeply personal stories of struggle and loss. <citation data-start-id="49.1" data-end-id="49.12"></citation>, <citation data-start-id="53.8" data-end-id="53.25"></citation>, <citation data-start-id="87.4" data-end-id="87.8"></citation> A central contention revolved around balancing veterans' constitutional due process rights against public safety and suicide prevention, reflecting a clear ideological divide among participants. <citation data-start-id="12.1" data-end-id="12.11"></citation>, <citation data-start-id="16.14" data-end-id="16.21"></citation>, <citation data-start-id="130.6" data-end-id="130.13"></citation> Underlying much of the discussion was a shared frustration with the VA's bureaucratic inefficiencies and perceived lack of accountability, particularly from veteran advocates. <citation data-start-id="49.17" data-end-id="49.20"></citation>, <citation data-start-id="147.20" data-end-id="147.27"></citation>

Participants

Transcript

And when it's red, it's on.
Good morning.  Is everyone ready?
Dr. Cohen, you ready?
All right.  Good morning.
The Subcommittee on Disability Assistance and Memorial Affairs will come to order.
Welcome.  All right, Mr. Self, there's no making fun of the chairman when I'm in control of the gavel.   I'd like to welcome the new members of the subcommittee and those returning members.  It is absolutely a privilege to be the chairman again for Disability Assistance, and my good friend Morgan McGarvey from Kentucky's Third District is now our ranking member.
So happy to have you here, sir.
Today, okay, so today we are gonna take a closer look at how the Department of Veterans Affairs seems to fail to give veterans any due process before violating their constitutional right to bear arms.   According to regulations issued by VA and the Department of Justice, VA must report to the FBI National Incident Criminal Background Check System, or the NICS List, the name of any veteran who needs help from a fiduciary to manage their finances because of a disability.
These veterans sacrificed to protect the Constitution due, excuse me, these veterans sacrificed to protect the Constitution due process and Second Amendment rights of every American.  Yet for over two decades, without any due process, VA bureaucrats have stripped over 250,000 veterans with fiduciaries of their constitutional right to possess and purchase firearms.  These practices have wrongfully prevented veterans with fiduciaries from owning, see me after class, sir.   You good to go, Mr. Reynolds?
All right.
This practice, okay, so for over two decades, I'll repeat this, over 250,000 veterans with fiduciaries, with fiduciaries have the constitutional right to possess and purchase firearms.  These practices have wrongfully prevented veterans with fiduciaries from owning firearms, whether to protect themselves and or their families.  VA reports these veterans to the next list without any ruling by any judge that they are a danger to themselves or others.   The VA does this without any medical findings by any medical professionals that they are dangerous to themselves or their community.
It is important to understand that the VA strips veterans of their constitutional right to bear arms with zero medical evidence, indicating that they are suicidal, homicidal, or a threat to their community.   Under VA's current practice, at no point before VA reports a veteran to the NICS list does any medical professional ever need to say that a veteran is at a risk to themselves.  It should go without saying that there is no data to support that a veteran who is unable to manage their finances because of a disability is automatically dangerous.  In fact, advocates for mental health care emphasize that assuming anyone with a mental illness is dangerous absolutely stigmatizes mental illness itself.   Ultimately, VA incorrectly assumes without any evidence whatsoever that a veteran should be stripped of their rights to bear arms or simply because they need help paying their bills.  By comparison, in every other state and federal legal system, civilians and criminals must be proven dangerous by a judge based on evidence before they are stripped of their constitutional right to bear arms.  Veterans with fiduciaries do not get the same process.   Unlike every other American, veterans with fiduciaries must undergo a difficult appeals process where they must prove that they should be given back their constitutional right to bear arms only after they have been added to the NICS list.   This means that veterans are subject to different rules compared to every other American, even though veterans fought to protect our American constitutional rights.  Since March 9th of 2024, VA has been temporarily prohibited from using any funds to report a veteran assigned a fiduciary to the next list without a court ruling that the veteran is a danger to themselves or others.   This hearing will reveal that Congress must pass a permanent piece of legislation or legislative solutions to protect veterans' constitutional due process.
This hearing is not about guns or demand.
It's about affording veterans with the same due process rights every other American is afforded.  I look forward to hearing from our witnesses, and thank you, Dr. Reynolds.
I appreciate you traveling all the way from Alabama, sir.  With that, I will yield to the ranking member for his opening remarks.
Thank you very much, Mr. Chairman.  I truly am looking forward to working with you.  I've enjoyed our relationship over the last few years and enjoyed the relationship you had with my predecessor, Representative Pappas.  And one of the things that we have talked about several times is that no matter where we find ourselves outside these walls,   We agree.  We agree that our veterans deserve our care.  They have earned our care.  They have been made a both a legal and a moral promise.  And it is our job on this committee to make sure that we live up to that promise.  And I look forward to working with you to do so.  I know today's hearing is also a little bit tricky.

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