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Biden Was Right on Veterans Before He was Wrong; Now Congress Tightens the Reins

Monday, June 10, 2024

Biden Was Right on Veterans Before He was Wrong; Now Congress Tightens the Reins

In March, we reported on an appropriations rider that corrected a longstanding and shameful practice by the Department of Veterans Affairs (VA) of reporting beneficiaries to NICS as “mental defectives” prohibited from having guns, merely because they had been determined to need financial oversight. President Biden grudgingly signed that provision into law, enraging his anti-gun supporters, who immediately began a misinformation campaign that leveraged harmful and inaccurate stereotypes about the beneficiaries and misrepresented the meaning of the law. Meanwhile, the VA was forced to stop its reporting, sparking demands from anti-gunners that it find a new way to ban its beneficiaries from having guns.

Now a new military appropriations bill is making its way towards Joe Biden’s desk, and this time he is insisting that he will veto the package because, among other things, it continues to protect veterans’ Second Amendment rights. Pro-gun members of Congress, however, have called his bluff and made the protections for veterans in this version of the bill even stronger.

Why would Joe Biden refuse to reauthorize language protecting veterans’ rights he had previously signed into law? In a word, politics. The election is drawing closer, his poll numbers are sagging, and Biden needs to continue to make anti-gun deliverables to his most committed supporters and donors: rich globalists who hate guns.

The pending bill is H.R. 8580, the Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2025. As the name implies, it would provide crucial funding for America’s Armed Forces and the department responsible for administering healthcare and benefits for veterans and their families. One would think that with two of America’s allies at war, and with international peace and stability in an increasingly precarious balance, now would not be the time for the administration to reverse its prior position to play anti-gun politics with military funding.

Yet to think that would be to underestimate just how central radical gun control is to Joe Biden and his supporters in the far-left wing of the Democrat Party.

What, after all, is the language and policy that would hold up this effort, language that Biden himself had previously tolerated? Basically, it would continue to require authentic due process and relevant findings by a neutral judge before the VA could report a beneficiary to the FBI’s prohibited person database and trigger a lifetime ban on the fundamental right to keep and bear arms.

Found in Sec. 261 of the pending bill, it states:

None of the funds made available by this Act may be used by the Secretary of Veterans Affairs under section 5502 of title 38, United States Code, in any case arising out of the administration by the Secretary of laws and benefits under such title, to report a person who is deemed mentally incapacitated, mentally incompetent, or to be experiencing an extended loss of consciousness as a person who has been adjudicated as a mental defective under subjection (d)(4) or (g)(4) of section 922 of title 18, United States Code, without the order or finding a judge, magistrate, or other judicial authority of competent jurisdiction that such person is a danger to himself or herself or others.

Proponents of the VA’s scheme to report beneficiaries assigned a fiduciary to handle their benefits to NICS claim these are all individuals who are dangerous to themselves or others with guns. Yet all the curative language says is that the VA now has to prove that to a neutral judicial authority before they can act on that proposition, rather than assuming it based on their own bureaucratic practices and procedures. 

This is so reasonable a premise that the Biden administration essentially signed onto it before the U.S. Supreme Court in a recent oral argument about whether banning those convicted of a “misdemeanor crime of domestic violence” offends the Second Amendment. Justice Clarence Thomas noted that in the case of a misdemeanor conviction, it is a judge making the determinations that would lead to the collateral consequence of firearm prohibition. But what if, he asked the administration’s solicitor general, it was an administrative body [which would include the VA] instead? Would that administrative determination carry the same weight under the Second Amendment?

The government’s lawyer replied:

I think it would be far more difficult to defend an executive branch or an administrative determination because of a separate Second Amendment principle that guards against granting executive officials too much discretion to decide who and who cannot have firearms. … [I] in the American legal tradition, these principles have been deployed through legislative judgments or through express judicial findings of dangerousness. So I don't think that we could point to the same history and tradition of giving executive branch officials that discretion.

Indeed, this may be why the institutionally anti-gun VA is the only federal entity that uses the administrative assignment of a fiduciary in the context of a benefits program as a reason to report its beneficiaries to NICS as prohibited persons. Not only is that an admitted violation of the Second Amendment, it has never been validated by any federal appellate court as a faithful reading of the underlying statutes. And when the Obama/Biden administration tried to import the same practice into the Social Security context, which would have affected exponentially more beneficiaries, the effort was roundly criticized by civil libertarians on both the left and right and promptly shot down by Congress.

Predictably, the protective language in the spending bill did not deter gun prohibitionists determined to deprive veterans, in particular, of the constitutional right to arms. Numerous anti-gun members of Congress wrote to the VA secretary after the original provision passed, urging him to create “an automatic process to seek a judicial order for veterans the Department has found to be mentally incompetent for the purposes of appropriately adding them to the NICS background check system.” What they wanted, in other words, was a red flag regime on steroids targeted specifically at VA beneficiaries.

That, in turn, prompted pro-gun members of the House of Representatives to make the protections for veterans’ Second Amendment rights in the latest spending bill even stronger. An amendment to H.R. 8580 spearheaded by Rep. Eli Crane (R-AZ) passed last Tuesday with bipartisan support. Crane’s provision would prevent the VA from using the assignment of a fiduciary to report a beneficiary to NICS under any circumstance, adopting the same rule that Congress applied to Social Security beneficiaries. Surely America’s veterans, whose service protected the constitutional rights of all, deserve the same protection and consideration as those who qualify for Social Security benefits.

Crane’s amendment was included in the version of H.R. 8580 passed by the full House of Representatives last Wednesday and now before the U.S. Senate for its consideration.

Biden’s Statement of Policy on the original version of H.R. 8580 faulted it for including Sec. 261, the same language that was good enough for him when he signed the Consolidated Appropriations Act, 2024 into law. No doubt Rep. Crane’s amendment to prohibit outright the VA’s reporting of beneficiaries assigned fiduciaries to NICS will not further endear the pending military appropriations legislation to the White House.

But is Joe Biden so anti-gun that he will reverse even his own policy decision to prove it, at the expense of America’s men and women in uniform?

Time will tell, but even the threat shows that anti-gun politics drive the thinking of Joe Biden and his supporters in a unique and all-encompassing way. 

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.