Three Facts About the Veterans 2nd Amendment Protection Act You Won’t Learn from NPR

Last Thursday, the U.S. House of Representatives passed H.R. 1181, titled the Veterans 2nd Amendment Protection Act. Here's how NPR reported on the Act:

The legislation would add a new hurdle to the process of blocking a veteran whose mental competence is in question from owning a gun. While the Department of Veterans Affairs currently adds the names of veterans it deems unfit to own a deadly weapon to a federal background check system, the bill would require a court hearing before that determination is made.

For more context, under current law, the Department of Veterans Affairs (VA) transmits the name of any veteran who has been found "mentally incompetent" by the VA to the National Instant Criminal Background Check System (inexplicably abbreviated NICS) as a person "adjudicated as a mental defective" prohibited from purchasing or possessing a firearm. H.R. 1181 would limit that practice to those veterans who have been found by a court to pose a risk to themselves or others.

NPR's report on H.R. 1181 omits any serious discussion of the problems with the VA's practice. It cites only two arguments in favor of the bill--that it would "help veterans avoid being caught up in a bureaucracy that can make it tough to remove a negative label" and "'remov[e] the stigma of mentally ill people -- that because someone is mentally ill, they're a danger to themselves or others.'" But there's more to it than that. Here are three facts about the Veterans 2nd Amendment Protection Act that NPR neglected to mention.

1. The VA's determination has nothing to do with gun safety.

The NPR report relies on popular ignorance of the specific determination made by the Department of Veterans Affairs, claiming that the veterans targeted by this practice have been "deem[ed] unfit to own a deadly weapon." This isn't so. To be sure, the VA determines whether a person is "mentally incompetent," but it defines "mentally incompetent" to mean "one who because of injury or disease lacks the mental capacity to contract or to manage his or her affairs, including disbursement of funds without limitation" (emphasis added). In other words, the VA isn't looking at whether the veteran poses a risk to herself or others or can safely handle a firearm; it's only looking at whether she can manage her own finances. That standard makes sense when the VA is deciding who it should be sending benefits checks to, but it makes no sense when deciding whose Second Amendment rights the federal government will respect.

2. The VA's practice lacks real due process.

When the VA notifies a veteran that it is investigating whether the veteran is mentally incompetent, he is allowed to request a hearing at which he may present evidence on that question. If the VA finds a veteran to be mentally incompetent, he can then challenge his inclusion in NICS. In that challenge, the veteran has the burden of proving by clear and convincing evidence that he is "not likely to act in a manner dangerous to [himself] or others."

Notice a few things about this procedure: First, the VA never has to prove that the veteran is "likely to act in a manner dangerous to [himself] or others." It's only considering whether the veteran can manage his own finances. Second, the burden of proof when a veteran challenges his inclusion in NICS is on the veteran. So, to successfully challenge the VA's referral to NICS, the veteran must disprove what the VA has never even attempted to prove. Finally, the clear-and-convincing-evidence standard--which is higher than the preponderance-of-the-evidence standard usually used in civil lawsuits--is the same standard used when the government is trying to deprive an individual of some rights. For example, the U.S. Supreme Court has held that the standard applies to involuntary civil commitments and the involuntary termination of parental rights. But in this context, the individual must prove that the government cannot deprive him of an express constitutional right by that standard of evidence, perverting the normal requirements of due process.

3. We've been over this already.

In December 2016, the Social Security Administration (SSA) promulgated a rule that would have created a procedure similar to the VA's, but for individuals receiving disability benefits on account of a mental impairment whose benefits were paid to a representative payee. Recognizing the same problems in that rule as I've listed above regarding the VA's practice, a number of organizations supported H.J. Res. 40, a joint resolution under the Congressional Review Act overturning the SSA rule. These included the ACLU (PDF), the National Disability Rights Network (PDF), the Autistic Self Advocacy Network (PDF), the National Council on Disability (PDF), and many other organizations. In response, Congress enacted H.J. Res. 40, and President Trump signed it into law on February 28, 2017.

To summarize, the VA's determination is irrelevant to gun safety, its procedures lack real due process, and our elected representatives have already rejected a similar practice by the SSA. NPR did its readers a disservice by failing to note any of these facts in its report on H.R. 1181.