Transportation, Housing and Urban Development, and Related Agencies

Floor Speech

BREAK IN TRANSCRIPT

Mr. GRASSLEY. Mr. President, I am going to speak about an amendment that I am going to propose right away. It 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 the names listed on the ``mental defective'' category for the National Instant Criminal Background Check System, otherwise known as the national gun-ban list, are from the Veterans Administration. 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.

Now, 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. In other words, their Second Amendment rights are being denied.

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 affairs. So I quote: ``Rating agencies have sole authority to make official determinations of competency and incompetency for the purpose 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 way back in the 1970s. 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 a gun-ban list, they be determined a ``mental defective.''

The Bureau of Alcohol, Tobacco, Firearms and Explosives 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 the 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.

Now, this 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, or the Veterans Administration, 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, then, 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 mere suggestion of his wife, he now uses auto debit for bills so he doesn't have to go to the post office. The VA doctor put down that he doesn't pay his own bills, and his wife handles his finances. The next thing he knew was that 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 talking away a veteran's right to self-defense? After all, this 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.

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 then 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 the names to that gun-ban list.

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 that a constitutional right is involved. Hearsay is allowed in the hearing process, and the burden of proof is on the veteran to show that they are competent to manage their finances. In essence, it is the veteran who has the burden of proof of showing that they should maintain their Second Amendment rights, although, again, that is not even the purpose of the hearing. That cannot stand. When constitutional issues are at stake, the burden ought to be on the government.

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 a gun-ban list. The Supreme Court held the Second Amendment to be a fundamental right in 2010. Associate Justice Alito, who wrote the opinion of 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.

There has been no update to the VA's protocols 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 update to the gun-reporting system. That is why I have introduced this amendment.

My amendment is simple. It is straightforward. It makes perfect constitutional sense. It simply requires that before the VA reports names to the Department of Justice for eventual placement on the gun- ban list, the Veterans Administration must first find that a veteran is a danger to himself, herself, or others, and that finding must be done via 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, don't we, that dangerous persons must not own or possess firearms.

Second, it shifts the burden of proof from the veteran and onto the government, where it ought to be. Third, it fixes the conditional due process issues by moving the hearing from the VA to the judicial system.

Like I said, these are commonsense constitutional fixes, but, more 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, like maybe having someone handle their finances. The fact that almost 99 percent of the names in the gun-ban list of the category that we call ``mental defective'' are from the VA raises suspicion that our government is unfairly targeting veterans.

That is why the American Legion and the Veterans of Foreign Wars have expressed strong support for my amendment. There is nothing more offensive to the principles of liberty than when the government takes away a person's constitutional rights when it has no right to take away those constitutional rights. Moreover, I have heard from Iowa veterans that some veterans are even reluctant to seek care from the VA for fear of losing their Second Amendment rights.

It is outrageous, then, that veterans are afraid to seek the care they have actually earned by being 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, and support it for the sake of veterans who may be wrongly targeted. To all of 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 commitment to you.

I urge my colleagues to join me in making this very bad situation right--constitutionally right.

I repeat for my colleagues that the American Legion supports it, but they couldn't get a letter to us.

Hon. Charles E. Grassley, U.S. Senate, Washington, DC.

Dear Senator Grassley: On behalf of the nearly 1.7 million members of the Veterans of Foreign Wars of the United States (VFW) and our Auxiliaries, I write in support of your amendment to H.R. 2577, which would protect veterans' rights under the Second Amendment of the United States Constitution.

Currently, when the Department of Veterans Affairs (VA) makes the determination that a veteran would benefit from the assistance of a fiduciary to handle his or her finances, VA sends that veteran's name to the National Instant Check System, preventing them from legally purchasing firearms. The VFW has long opposed this practice, believing that veterans who swore to support and defend the United States Constitution should not lose their rights under the Second Amendment simply because they need fiduciary assistance. The need for a fiduciary in no way implies that they are a danger to themselves or others. By ensuring that no veteran loses his or her right to purchase firearms without order or finding of a judge, magistrate, or other judicial authority of competent jurisdiction, your amendment would put an end to this objectionable VA practice.

The VFW thanks you for your leadership on this issue, and your commitment to protecting veterans' constitutional rights and liberties. We look forward to working with you and your staff to pass this much needed amendment. Sincerely, Raymond C. Kelley, Director, VFW National Legislative Service.

BREAK IN TRANSCRIPT

Mr. GRASSLEY. 3925.

BREAK IN TRANSCRIPT

Mr. GRASSLEY. I agree.

BREAK IN TRANSCRIPT

Mr. GRASSLEY. Mr. President, first, we are not talking about convicted felons here, like the first thing the Senator from Illinois started to say. What we are trying to do is protect the constitutional rights of veterans, Second Amendment rights, and we are preventing the government from spending money to violate the constitutional rights.

As I just made clear, the main purpose of the VA regulation is to appoint a fiduciary, not to regulate firearms, but it has the effect of regulating firearms. This standard has been in place since the 1970s. It has nothing to do with regulating firearms.

Don't you think that since the Supreme Court held the Second Amendment to be a fundamental right in 2010, there ought to be an update of this system?

Indeed, Federal law made clear that the regulations prescribed by the VA Secretary are limited to ``the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under such laws,'' 38 USC 501. Again, that provides no authority to regulate firearms, but it has that impact.

Just like the Senator from Illinois, I don't want dangerous persons to have firearms, but the government must first prove a person is a danger before taking away their constitutional rights.

I am somewhat disappointed that Members on the other side of the aisle would object to even considering an amendment that simply protects veterans from having a fundamental, constitutional right taken away and doing it without due process.

When we were in the minority, we were accused of being obstructionist because we wouldn't go along with the then-majority leader's efforts to block Senators of both parties from offering amendments. Now that we are in a majority, Senator McConnell has tried to restore the tradition of having amendments considered from both sides of the aisle. Yet we have these old tricks--still refusing to vote on amendments that show the American people whose side they are on.

I think this is an opportunity to show you are on the side of the veterans--veterans who probably handled guns in Iraq and Afghanistan not being able to do that here.

I don't understand what is so tough about voting on whether veterans' constitutional rights should be protected. It should be clear to anyone paying attention who is obstructing. They tried to destroy the Senate as a deliberative body when they were in the majority. Now they are obstructing a vote on protecting the fundamental constitutional rights of those who have put their lives on the line for our country.

Shame on you.

BREAK IN TRANSCRIPT

Mr. GRASSLEY. Mr. President, I would just say a simple thing. I have already said we don't want dangerous people to have guns. But the point is that the VA is not identifying the people who might be a danger to themselves or a danger to society. As the Senator from Illinois says, they are simply doing it because ``You can't handle your own finances.'' That is where their constitutional rights are being denied. Their constitutional rights are being denied by a VA employee--maybe somebody who doesn't know anything about mental health--and that is wrong. That is what we are trying to prevent.

BREAK IN TRANSCRIPT

Source