Nearly all of the individuals included on the Justice Department’s gun ban list in the “mental defective” category are referred by the Department of Veterans Affairs. This has Senate Judiciary Committee Chairman Chuck Grassley investigating a possible infringement on veterans’ Second Amendment rights.
Grassley, an Iowa Republican, sent a letter to Attorney General Eric Holder on Monday seeking information on how the Justice Department manages its National Instant Criminal Background Check (NICS).
Federal agencies are required to report individuals that fit into the “mental defective” category to NICS, which is managed by the FBI. Doing so blocks them from being able to purchase firearms.
According to data from Congressional Research, in 2012 the VA was responsible for 99.3 percent of all “mental defective” referrals to NICS. That’s ironic given that it is veterans who are charged with protecting Americans’ constitutional rights, according to Grassley.
“It’s disturbing to think that the men and women who dedicated themselves to defending our freedom and values face undue threats to their fundamental Second Amendment rights from the very agency established to serve them,” Grassley said in a statement.
In his letter to Holder, Grassley wrote that the legal standard for a “mental defective” designation is whether individuals pose a danger to themselves or to others. But he claims that the VA’s standard is much more expansive.
“Instead VA reports individuals to the gun ban list if an individual merely needs financial assistance managing VA benefits,” Grassley wrote. “Although the VA process is not designed to regulate firearm ownership, it results in veterans and their loved ones being barred from exercising their fundamental, Constitutionally-guaranteed Second Amendment rights.”
“A veteran or dependent shouldn’t lose their Constitutional rights because they need help with bookkeeping,” Grassley said in his statement.
Grassley questioned whether veterans were being granted due process before being placed in the “mental defective” category and whether the standard was being applied consistently across the federal government.
He pointed out that the Bureau of Alcohol, Tobacco and Firearms’ (ATF) “mental defective” standard applies only to those deemed to be a danger to themselves and others. The law explicitly states that the standard does not apply to individuals who suffer from mental illness but have not been determined to present such a threat.
Grassley also wrote that the VA is not required to make a “clear and convincing” case that a particular veteran should be listed in the “mental defective” category. “Hearsay is allowed,” he wrote, while asserting that “there are no significant checks and balances in place to ensure that there is any evidence to conclude that a veteran is a risk to the public or themselves.”
Once the VA does determine that a veteran is unable to manage finances and benefits and fits into the “mental defective” category, the burden falls squarely on him or her to disprove it.
“In light of the liberty and property interests involved, placing the burden of proof on the veteran is highly suspect. Under similar circumstances, the burden is generally on the government,” Grassley wrote.