Depriving Our Veterans of Their Constitutional Rights: An Analysis of the Department of Veterans Affairs' Practice of Stripping Veterans of Their Second Amendment Rights and Our Nation's Response
57 Pages Posted: 13 Aug 2018 Last revised: 30 Jan 2019
Date Written: 2018
President Lincoln’s promise “To care for him who shall have borne the battle” reverberates throughout history as America’s promise to care for her wounded veterans. Because it is our moral obligation to care for our veterans, the Department of Veterans Affairs (VA) was created to ensure that every disabled veteran could receive the care he or she had earned. However, in recent years, the VA has been treading on the rights of veterans by systematically stripping them of their Second Amendment right to possess a firearm. Determinations that affect the veteran’s constitutional rights are made in the silo of the VA without any determination that the veteran is a danger to himself or others. The veteran is not even permitted to hire an attorney to help him through the process until after the VA’s decision is made. Due to the delay in the system, it can take up to five years or more for a judge to review the VA’s decision. This process begins when the VA declares, often in a haphazard manner, that a veteran is incapable of financially managing a benefit payment. Then, based upon an agreement in an unpublished memorandum, the VA reports that veteran to the Department of Justice as someone who is prohibited from owning a firearm because he has been “adjudicated a mental defective.” Divesting a veteran of his or her constitutional rights in a manner that affords less protections than other citizens receive creates an unconstitutional infringement of the veteran’s Second Amendment rights under the United States Constitution. This situation is particularly ironic and shameful when one considers the lasting oath of all who have served in the Armed Forces of the United States to support and defend the Constitution above all else. For the past decade, most recently in the spring of 2017, Congress has considered, debated, and periodically passed in its respective chambers legislation that would prevent the deprivation of the rights of veterans determined “financially incompetent” through this process. Both proponents and opponents of such legislation recognize that while the process the VA uses to declare a veteran a “mental defective” may inadvertently prevent gun ownership for some veterans who are a danger to themselves or others, there is the likelihood that veterans who pose no threat to anyone are also affected. The core disagreement is whether the impact of this policy on the constitutional rights of innocent veterans is an acceptable trade-off? Congress has decided that this trade-off is undesirable in the Social Security system and has forbidden the Social Security Administration from implementing a plan to report incompetent payees to DOJ in a manner similar to the VA. Which begs the question, why is this still a permissible practice in the VA? This article does not attempt to argue that persons who have been adjudicated mentally incompetent by a court after a hearing or have been involuntarily committed to a mental health facility should be permitted to purchase or possess firearms. This article does however contrast and compare the determination of financial incompetency in the VA to other determinations of “mental defectiveness” in order to demonstrate that the VA’s standards do not rise to the level of “adjudicat[ing] [the veteran] a mental defective” necessary to be stripped of his constitutional rights. This article also argues that including veterans determined financially incompetent for VA purposes on a list of persons unable to exercise their Second Amendment rights is an unconstitutional deprivation of these rights and must be remedied not only for those veterans who may be affected in the future, but for those veterans who find themselves in this situation currently. This article will explore in Part I the VA and will discuss how the VA goes about determining that a veteran is incompetent for financial purposes. Part II will discuss gun control legislation and the effect of a declaration of financial incompetency for VA purposes on the ability of a veteran to possess firearms. Part III will look at the application of the VA’s financial incompetency determination to a real-life veteran through a case-study. Part IV explores the federal legislation regarding incompetency decisions, including the Social Security Administration and its proposed rule to follow the VA’s lead in reporting beneficiaries determined to be financially incompetent to the list of prohibited persons and the Veterans 2nd Amendment Protection Act. Part V will analyze the constitutional implications of the VA’s process. Part VI will end the discussion with some thoughts on the importance of addressing this issue and the potential avenues to provide relief for veterans who already find themselves in the predicament of being listed as a prohibited person due to a determination of financial incompetence.
Keywords: veteran, veterans, veterans affairs, second amendment, constitutional rights, gun control
JEL Classification: K39, K3, K4, K00
Suggested Citation: Suggested Citation