In a not-so-shocking admission, the Biden-Harris Department of Veterans Affairs (VA) told Congress it would not follow the law. That may sound like hyperbole, but it really isn’t. During a July hearing of the Subcommittee on Disability Assistance and Memorial Affairs of the House Veterans Affairs Committee, VA officials brazenly told incredulous members of Congress the VA “could not” and “would not” comply with proposed legislation aimed at reining in part of its unauthorized mission designed to strip veterans of their Second Amendment rights.
The issue stems from the Gun Control Act of 1968 (GCA), which, in part, created categories of persons who are prohibited from receiving or possessing firearms, including those who have been “adjudicated as a mental defective.” The leading federal appellate case to examine that term (decided approximately five years after the GCA’s enactment), explained that phrase as of 1968 was a term of art meaning “a person who has never possessed a normal degree of intellectual capacity.” The court contrasted this with “an insane person,” which it described as one whose “faculties which were originally normal” but “have been impaired by mental disease.” The court made clear that “mental defectiveness” is not synonymous with “mental illness.”
Nevertheless, when the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) (under the notoriously anti-gun Clinton administration) proposed a regulation to define “mental defective” in 1996, it ignored that case and focused on others that generally indicated the GCA was broadly meant to keep firearms away from persons who were “potentially irresponsible and dangerous.” In its determination to cast as broad a regulatory net as possible, the ATF specifically mentioned the definition of “mentally incompetent person” used by the VA in administering its own system of disability benefits. “That definition,” ATF noted, “covers persons who because of injury or disease lack the mental capacity to contract or manage their own affairs.” Such persons, according to VA’s underlying statutes, can be assigned a “fiduciary” to manage their benefits.
When the FBI was setting up the National Instant Criminal Background System (NICS) in the late 1990s, it entered into a memorandum of understanding with the VA for the VA to provide records of its beneficiaries who were appointed fiduciaries. Such persons, according to the agreement, would be treated as prohibited “mental defectives” for purposes of NICS background checks.
The ATF’s regulatory interpretation of “mental defective,” however, has never been approved by any federal appellate court, while at least one lower court has squarely rejected it.
Over the years, there have been numerous measures designed to clarify that relevant “adjudications” must include a judicial finding that the person is a danger to self or others. Such a provision finally passed into binding law with an appropriations rider attached to this year’s Consolidated Appropriations Act to fund the government. That rider prohibits ATF from reporting beneficiaries to NICS as “mental defectives” unless a judicial order or finding of dangerousness has been made.
Nonetheless, the VA’s testimony at the July hearing made clear it would not recognize its misinterpretation of congressional law, even at the command of Congress itself.
One of the bills considered at the hearing was intended to repudiate the VA’s longstanding misapplication of the law and to ensure the FBI is apprised that NICS contains unauthorized records from the VA of mis-reported “mental defectives.”
Having created the “mental defective” prohibition, as well as NICS, Congress is certainly entitled to notify federal departments and agencies involved in the administration of those laws that they have misinterpreted them and need to take corrective action.
Incredibly, however, VA insisted at the hearing that it “could not” and “would not” comply with such a congressional mandate, based on its own interpretation of “mental defective” and its own misguided belief that gun control is central to its mission.
The VA’s intransigence on interfering with veterans’ Second Amendment rights is a longstanding scandal. Fortunately, progress has recently been made in curbing these abuses. Nevertheless, more work obviously remains to be done before the VA will finally be cured—kicking and screaming—of a gun-control fixation that is not only unnecessary to its core mission but also interferes with that mission by creating disincentives for veterans to seek the VA’s help. July’s hearing made abundantly clear the mounting urgency to relieve the VA, once and for all, of its anti-gun delusions and ambitions.
Members of the House Committee sent a letter to VA Secretary Denis McDonough, apprising him of the hearing’s testimony and demanding that he reassure the committee that VA will comply with the Veterans 2nd Amendment Restoration Act of 2024, should it be enacted into law.
We will report any updates on this situation as they become available.
