WASHINGTON – Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, today expressed disgust that Senate Democrats were objecting to a vote on his amendment to ensure that veterans don’t lose their Second Amendment rights because of a constitutionally questionable process used by the Department of Veterans Affairs for reporting names to the federal National Instant Criminal Background Check System (NICS).  The NICS is effectively a national gun ban list and all persons reported to it are prohibited from owning or possessing firearms.  Grassley tried to bring up his amendment during the current Senate debate on the Military Construction and Veterans Affairs Appropriations bill, but Senate Democrats refused to allow it to be considered.

            As of December 2015, nearly 99 percent of names listed on the “mental defective” category within the federal gun background check system were from the Department of Veterans Affairs (VA).  Grassley’s amendment requires that before the VA reports names to the Department of Justice for eventual placement on the gun ban list, the VA must first find, by judicial order, that a veteran is a danger to himself, herself, or others – a standard which is not currently employed by the VA.

            The amendment is supported by the American Legion and the Veterans of Foreign Wars.  

            “Taking away the very constitutional rights without due process that veterans fought to uphold is wrong and cannot stand.  The VA regulatory scheme fails to adequately protect the liberty interests of veterans.  It’s a double hit for those who fought to protect the United States when my colleagues on the other side of the aisle object to even voting on this fundamental right,” Grassley said.  “The VA’s actions are an example of the federal government, once again, going too far.”  

            Grassley said that he has heard from Iowa veterans that some veterans are reluctant to seek care from the VA for fear of losing their Second Amendment rights.

            “It’s outrageous that because of the VA policy, veterans are afraid to seek the care they have earned in service to their country because the VA might deprive them of a constitutionally protected right without due process,” Grassley said.
            All federal agencies are required to report names of individuals to the federal background check system “mental defective” category.   According to the Bureau of Alcohol, Tobacco, Firearms, and Explosives, a key 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 VA process never reaches that finding.  Instead the VA reports individuals to the gun ban list if an individual merely needs financial assistance managing VA benefits.  Although the ATF and VA regulations share some common language, unlike the ATF’s regulatory scheme, the VA’s scheme was not designed to regulate firearms.  Despite that clear purpose, the VA is using its regulations to regulate firearms, resulting in veterans and their loved ones being barred from exercising their fundamental, constitutionally-guaranteed Second Amendment rights.
            Grassley began conducting oversight of the VA’s process more than a year ago.  On April 15, 2015, he sent a letter to then-Attorney General Eric Holder outlining concerns that a number of failures, including the inconsistent application of standards and weak due process protections, were leading to a disproportionate number of names submitted to the gun ban list by the VA.  He has also written a similar letter to the VA and the Social Security Administration regarding the process of submitting names to the gun database

            Grassley’s floor statement regarding the amendment is below.

Prepared Floor Statement of Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Protecting the Second Amendment Right of Veterans
Tuesday, May 17, 2016

Mr. President,

The amendment I am proposing today is about fidelity to the Constitution and the Bill of Rights.  

Specifically, fidelity to the Second Amendment as it involves the Department of Veterans Affairs.

There appears to be a troubling trend within the VA.

As of December 2015, almost 99 percent of names listed on the mental defective category for the National Criminal Instant Background Check System, otherwise known as the national gun ban list, are from the VA.

Once a person’s name is on that list, they are banned from owning or possessing a firearm.

Their Second Amendment rights are completely null and void.

Why is this happening?

Once the VA determines that a veteran requires a fiduciary to administer benefit payments, the VA reports that veteran to the gun ban list, resulting in a total denial of a veteran’s right to possess and own firearms.

The VA has attempted to justify its actions by relying on regulations that grant limited authority to determine incompetence 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.”

It is clear, therefore, that the VA’s core regulatory authority applies to matters of competency for financial purposes.

Importantly, this financial/fiduciary standard has been employed since the 1970s and it has nothing to do with regulating firearms.

Yet, that is exactly what is happening – firearms are being regulated.

Federal law requires that before a person is reported to the gun ban list, they be determined a “mental defective.”

The Bureau of Alcohol, Tobacco, and Firearms created a regulation to define what “mental defective” means.  

It includes, among other requirements, that a person is a danger to self or others.

Granted, the VA regulation at issue and the ATF regulation do share some of the same language.

But, the intent and purpose are totally different.

On the one hand, the VA regulation is designed to appoint a fiduciary.

On the other hand, the ATF regulation is designed to regulate firearms.

That is a huge distinction.

The level of mental impairment that justifies taking away the right to possess and own firearms must rest at a severe and substantial level.

A level where the mere possession of a firearm constitutes a danger to self or others.

That decision is never made by the VA before submitting names to the gun ban list.

As such, imposing a gun ban is a harsh result that could sweep up veterans that are fully capable of appropriately operating a firearm for self-defense purposes.

So how does this work in practice?

The Daily Caller interviewed a veteran who had been a victim of this VA process for an April 21, 2015 article.

The veteran reportedly told a VA counselor who asked about how he handles his finances that, on the suggestion of his wife, he now uses auto-debit for bills so he doesn’t have to go to the Post Office.

That VA doctor put down that he doesn’t pay his own bills and his wife handles the finances.  

The next thing he knew, his wife was appointed as his fiduciary and his name was placed on the gun ban list.

Whether or not he handles his own finances, what does that have to do with taking away a veteran’s right to self-defense?

After all, that is the core purpose of the Second Amendment: self-defense.

Self-defense is a natural right of all individuals.  It is a God-given right.

It is a right that existed before the Declaration of Independence and the Constitution were ever drafted. --It is a sacred right.

And the Supreme Court has held the Second Amendment to be a fundamental right.

So, when the federal government erases that right for any given individual, it better have compelling justification to do so.

Assigning a fiduciary is not a compelling justification.

That is especially so when the VA does not even determine whether veterans are a danger to themselves or others before reporting their names.

Further, the VA fails to offer adequate constitutional due process protections.

The standard of review, clear and convincing evidence, is particularly low in light of the fact a constitutional right is involved.

Hearsay is allowed in the hearing process. And the burden of proof is on the veteran to show they are competent to manage their finances.  

In essence, it is the veteran that has the burden of proof of showing that they should maintain their Second Amendment rights, although again, that isn’t even the purpose of the hearing.

That cannot stand.

When constitutional issues are at stake, the burden ought to be on the government.

And finally, the hearing that does take place is before VA employees, not a neutral arbiter.  
With these significant flaws, it is clear that the VA regulatory scheme is inherently suspect.

Importantly, these VA regulations have been in place since the 1970s, well before even the existence of the gun ban list.

The Supreme Court held the Second Amendment to be a fundamental right in 2010.

As Associate Justice Alito, who wrote the opinion for the Court, stated, “It is clear that the Framers…counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”

It cannot be said that the VA’s regulatory scheme adequately protects the liberty interests of the veteran.

Quite the contrary, the VA regulatory scheme is an example of the federal government, once again, going too far.

As government expands, liberty contracts.

There are just too many flaws in the VA’s regulatory scheme that result in a failure at ensuring constitutional demands are met.

And there has been no update to the VA’s protocol since the Supreme Court’s decision in 2010.

During the course of my oversight of this issue, not even the Department of Justice can adequately explain why there has been no substantive updates to the gun reporting system.

That is why I have introduced this amendment.

My legislation is simple, straightforward, and makes perfect constitutional sense.

It requires that before the VA reports names to the Department of Justice for eventual placement on the gun ban list, the VA must first find that a veteran is a danger to himself, herself, or others.

And that finding must be done via a judicial order.

These requirements do three important things:

First, it makes the danger to self or others standard applicable to the VA.  We all agree that dangerous persons must not own or possess firearms.

Second, it shifts the burden of proof from the veteran and onto the government.

Third, it fixes the constitutional due process issues by moving the hearing from the VA to the judicial system.

Like I said – these are common sense, constitutional fixes.

But, most importantly, it is what our nation’s veterans deserve.

Our veteran population is sacred.  They deserve the thanks of a grateful nation, not the iron fist of an out of control federal government.

Most importantly, the government must not unfairly target our veteran population simply because some may have challenges after returning home from war.

The fact that almost 99 percent of the names in the gun ban list “mental defective” category are from the VA raises suspicion that our government is unfairly targeting veterans.

That’s why the American Legion and the Veterans of Foreign Wars have expressed strong support for my amendment.

There is nothing more offensive to principles of liberty than when the government takes away a person’s constitutional rights when it has no right to do so.

Moreover, I have heard from Iowa veterans that some veterans are reluctant to seek care from the VA for fear of losing their Second Amendment rights.

It’s outrageous that veterans are afraid to seek the care they have earned in service to their country because the VA might deprive them of a constitutionally protected right without due process.

This must stop.

I urge my colleagues to support this legislation.

Support it on constitutional grounds.

Support it on fairness grounds.

Support it for the sake of veterans who may be wrongly targeted.

To all our nation’s veterans, I say God bless you and thank you for your service to our great country.

You deserve better than to have your rights violated by the very agency that is supposed to fulfill our nation’s commitments to you.

I urge all my colleagues to join me in making this right.

I ask Unanimous Consent to set aside the pending amendment and call up amendment number 3925