While decent Americans spent Veterans Day honoring the sacrifice of those who served the country and took an oath to “support and defend the Constitution of the United States,” the gun control radicals at Giffords (formerly Americans for Responsible Solutions and the Second Amendment-denying Legal Community Against Violence) used the occasion to advocate against former servicemen and women’s Constitutional rights.
The anti-rights organization used its X account to post, in part,
Veterans deserve more than empty words. They deserve leaders who work to protect them.
But many in Congress are stopping the VA from flagging when a veteran is at a heightened risk of harming themselves or others, and therefore shouldn’t have access to a gun.
First, a little background.
The federal Gun Control Act of 1968 prohibits the possession or acquisition of firearms by a person who has been “adjudicated as a mental defective.” The main enforcement mechanism for this law is the National Instant Criminal Background Check System (NICS), which must be queried any time a person makes a retail purchase of a firearm. NICS contains records provided by states and the federal government of people who are prohibited by law from possessing guns. These include individuals who have been “adjudicated as a mental defective.”
As explained in a 1973 appellate court opinion on the meaning of this archaic language, the term “mental defective” refers to “a person who has never possessed a normal degree of intellectual capacity,” and does not refer generally to mental illness or mental insanity.
Nevertheless, the ATF in 1979 passed a regulation interpreting this law to apply to a “determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease …[l]acks the mental capacity to contract or manage his own affairs.”
The Department of Veterans Affairs (VA) administers a system of benefits for veterans with service-connected disabilities. Its own regulations allow those benefits to be received by a “fiduciary” on the beneficiary’s behalf if the VA determines the beneficiary to be “incompetent” to manage his or her finances. These determinations are made by VA officials, most without any special mental health training. There is usually no judicial process involved. The only issue in the VA’s “incompetency” proceeding is the individual’s “capacity to contract or to manage his or her own affairs, including disbursement of funds”.
The current VA system for determining “incompetency” has no necessary relationship to people who are dangerous or suicidal. It asks a different question, whether the person needs help handling VA benefits. And the answer to that question is provided in the first instance by VA employees, not by judicial officials operating according to the usual requirements of due process for someone facing a lifetime loss of a fundamental civil right.
In 1998, the VA started reporting beneficiaries who have been assigned these fiduciaries to NICS as “mental defectives,” and thus prohibited from possessing firearms under 18 U.S.C. 922(g)(4). Initially, this occurred without any notification to the beneficiary that the government considered him or her legally prohibited from possessing firearms.
The consequence was that hundreds of thousands of veterans were deprived of their Second Amendment rights without any judicial process and without any findings relevant to their ability to safely possess and handle firearms. The fact that it was happening to the very people who served to protect the safety and constitutional rights of all Americans, and was perpetrated by the very federal department that is supposed to be devoted to veterans’ aid and wellbeing, was particularly galling.
Last year, NRA-ILA secured a provision in the FY2024 appropriations process that defunded VA’s ability to submit the names of veterans with fiduciaries to NICS without a determination by a judicial authority deeming that a veteran is a danger to him or herself, or others.
The language prohibits the VA from reporting beneficiaries to NICS as “mental defectives” without “the order or finding of a judge, magistrate, or other judicial authority of competent jurisdiction that such person is a danger to himself or herself or others.” This ensures both that the beneficiary is given due process under the law and that a relevant finding is made before any VA determination of incompetency results in a loss of Second Amendment rights. Contrary to Giffords’ misleading X.com post, if a beneficiary is suicidal and that could be established before a judge, the person could still be reported to NICS.
In other words, this important legislation affords veterans the same due process rights in the Second Amendment context afforded all non-veterans, who aren’t forced to interact with the VA. At the time, Giffords and fellow institutional gun control organizations Everytown for Gun Safety and Brady opposed this vital effort to protect veterans’ rights.
Thanks to the hard work of NRA-ILA, pro-Second Amendment members of Congress, and President Donald Trump, Giffords has continued to lose this battle. The day after Veterans Day, President Trump signed appropriations bill H.R.5371 which, in addition to reopening the federal government, extended the language prohibiting the VA from improperly reporting veterans to NICS.
While the 2026 appropriations language is an important step towards rectifying a decades-long injustice, the continued attacks on veterans’ rights demonstrated in Giffords’s callous Veterans Day message makes clear the has come for Congress to pass the Veterans 2nd Amendment Protection Act (H.R. 1041/S.478), which would permanently prohibit the VA from submitting the names of veterans to NICS without due process.
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