[Congressional Record Volume 164, Number 23 (Tuesday, February 6, 2018)]
[Senate]
[Pages S653-S654]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GRASSLEY (for himself, Mr. Manchin, and Mrs. Ernst):
  S. 2386. A bill to provide additional protections for our veterans; 
to the Committee on Veterans' Affairs.
  Mr. GRASSLEY. Mr. President, I would like to raise a very important 
issue that is impacting our veterans population. That issue is the 
systematic denial of these veterans' Second Amendment rights. This 
comes up in discussions with Iowa veterans, and I have candidly 
discussed this issue before on the Senate floor.
  Today, I am introducing bipartisan legislation, cosponsored by 
Senator Manchin, called the Veterans' Second Amendment Rights 
Restoration Act of 2018. This bill is being introduced to solve the 
problem of denying these rights to veterans.
  The legislation is about the fidelity of the Constitution and about 
the fidelity of the Bill of Rights. It is also about due process and 
fairness for veterans. What this is not about, I want to make clear, is 
allowing anyone to purchase a firearm who is prohibited to do so under 
current law or regulations. I want it to be very clear right off the 
bat so that no one misinterprets this as some effort to let people own 
firearms who would normally be prohibited.
  This legislation is needed because a very disturbing trend has 
occurred in the past decade. The Veterans Health Administration has 
been reporting veterans to the National Instant Criminal Background 
Check System--the national gun ban list--just because these veterans 
have been determined by the VA to be veterans who require a fiduciary 
to administer benefit payments. This is a pretty simple proposition 
that denies veterans their Second Amendment rights. It is that simple, 
as I just said. A fiduciary's administering benefit payments to a 
veteran could and does lead to that veteran's being denied Second 
Amendment rights. Once on the gun list, a veteran is outlawed from 
owning or possessing firearms.
  It is crucial to note that the regulations that the Veterans Health 
Administration is relying on are from way back in the 1970s. It 
predates even the National Instant Criminal Background Check System and 
is long before the Supreme Court held the Second Amendment to be a 
fundamental, constitutional right. These regulations grant limited 
authority to determine incompetence only in the context of financial 
matters.
  The regulation reads like this: ``Rating agencies have sole authority 
to make official determinations of competency or incompetency for 
purposes of: insurance and . . . disbursement of benefits.''
  There is nothing wrong with that language, but it is that language 
that leads to the problems that veterans have with their Second 
Amendment rights. From this language, it is clear that the core 
regulatory authority applies to matters of competency for financial 
purposes. It has nothing to do with regulating who can purchase 
firearms, but that is exactly what is happening. Veterans are losing 
their Second Amendment rights because they have people managing their 
checkbooks. It is that simple. If you cannot handle your finances, you 
lose your Second Amendment rights.

[[Page S654]]

  Everybody wants to know how this is happening. Federal law requires 
that before a person is reported to a gun ban list, he be determined to 
be a ``mental defective.'' The Bureau of Alcohol, Tobacco, Firearms and 
Explosive created a regulation to define what ``mental defective'' 
means. It includes, among other requirements, that a person is a danger 
to self or others. The VA has taken the position that this Alcohol, 
Tobacco, Firearms and Explosives regulation can then be made to fit 
within its own preexisting regulatory structure for assigning a 
fiduciary, thus requiring that name be put on the gun ban list.
  The intent and purpose between these two regulations is entirely 
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. That is a great big, 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 at 
which the mere possession of a firearm would constitute a danger to 
self or others. That decision is never made by the VA before submitting 
names to this gun ban list. As such, imposing a gun ban is a harsh 
result that could sweep up veterans who are fully capable of 
appropriately operating a firearm.
  It gets worse.
  When veterans are then placed on that gun ban list, they must prove 
that they are not dangerous to the public in order to get their names 
removed from that list. That dangerousness standard is much higher than 
the mere assignment of a fiduciary. Thus, veterans are subjected to a 
more rigorous and more demanding evidentiary standard to get their 
names off the gun ban list than the Federal Government must prove to 
put their names on that list. We ought to all agree that is patently 
unfair. I also believe that it is unconstitutional. When dealing with a 
fundamental, constitutional right like the one protected by the Second 
Amendment, at the very minimum, the government ought to be held to the 
same standard as we the people.
  We owe it to our veterans to fix this problem. As of December 31, 
2016, the Veterans Health Administration reported 167,815 veterans to 
the gun ban list for having been assigned a fiduciary. That is 167,815 
out of 171,083 or another way of saying it is 98 percent of all names 
reported.
  It is important to note that since the VA reports names to the gun 
ban list merely when a fiduciary is assigned to that veteran, not one 
of those names has been reported because a veteran has been deemed to 
be a public danger. Accordingly, not all veterans reported to the gun 
ban list should be on it.
  On May 18, 2016, I debated this very issue on the Senate floor with 
Senator Durbin. He said, ``I do not dispute what the Senator from Iowa 
suggested, that some of these veterans may be suffering from a mental 
illness not serious enough to disqualify them from owning a firearm, 
but certainly many of them do.''
  Then Senator Durbin said, ``Let me just concede at the outset that 
reporting 174,000 names goes too far, but eliminating 174,000 names 
goes too far.''
  I am pleased that Senator Durbin acknowledged that many of the names 
supplied by the VA on the gun ban list do not pose a danger and should 
be removed.
  I thank his staff for working with my staff during this process.
  The essential question then is, How do we go about fixing it the 
right way?
  I believe my legislation does just that. This legislation adds a new 
step before the VA can report names to a gun ban list. The step 
requires that once a fiduciary is assigned, the VA must first find the 
veteran to be a danger to self or to the public before taking away his 
firearm. That is the same standard that the veteran must satisfy 
currently in order to get his name off the gun ban list.
  My legislation also provides constitutional due process. 
Specifically, it shifts the burden of proof to the government to prove 
a veteran is dangerous before taking away firearms. Currently, the 
entire burden of proof is on the veteran to prove that he or she is not 
dangerous. When a constitutional right is involved, the burden must 
always be on the government.
  My bill also creates an option for the veteran to seek legal redress 
via an administrative board or the Federal court system. The veteran is 
in control. It provides an avenue for every veteran already on that gun 
ban list to get his name removed. That last point is important to note.
  My bill does not automatically remove every veteran from the list, 
which was a concern Senator Durbin raised previously when we debated 
this issue. It does require the VA to provide notice to every veteran 
on the list of his right to go through the new process to have his name 
removed. Should a veteran choose to do that, the protections, the 
process, the procedure, and the standards set forth in my bill would 
then apply to him. Every veteran is free to apply for relief, and every 
veteran will be treated equally under my bill. Of course, that is the 
fair thing to do. That is the constitutionally sound way to manage this 
process.
  The bill does provide authority for the government to seek an 
emergency order if it believes a veteran is a serious and imminent risk 
to self or to others. That was a suggestion by Senator Durbin--to 
provide for a short-term safety mechanism when the situation is too 
urgent to wait for a judge to evaluate all of the facts.
  The bill also retains a mechanism for the VA to systematically refer 
veterans to the National Instant Criminal Background Check System. This 
was another of Senator Durbin's main concerns. A simpler bill passed 
the House of Representatives last year that is similar to the amendment 
I tried to offer and that Senator Durbin objected to in the year 2016. 
It would, simply, stop the VA from referring veterans to the gun ban 
list without first finding them a danger to self and others. However, 
it did not set up any system to make that happen. The argument is that 
this puts veterans using the VA in the same boat as everybody else. Of 
course, I am sympathetic to that argument, but the legislation I am 
introducing today is a good faith effort to overcome objections that 
have prevented action on this important issue in the past.

  My bill solves a problem that has existed for many years: denying 
veterans their Second Amendment rights. Veterans should not be subject 
to a harsher standard than what the government is subject to. Veterans 
deserve full due process protections when their constitutional rights 
are at stake. That is the core of this legislation.
  The regulatory process at the back end to remove a veteran from the 
gun ban list is simply moved to the front end; that is, the Federal 
Government must first prove that a veteran is dangerous before taking 
away firearms. This is the same standard applied to nonveterans.
  This fix will not change existing firearms laws. Felons are still 
prohibited from owning firearms. Persons with domestic violence 
convictions are still prohibited. Persons adjudicated as mentally 
defective are still prohibited. Persons involuntarily committed are 
still prohibited. If my bill were to become law, every Federal firearm 
prohibition would still exist.
  Again, the core of my bill simply requires the Federal Government to 
prove that a veteran is dangerous before taking away his or her 
firearms. That is the same standard our veterans must live by currently 
in order to remove their name from the gun ban list and get their guns 
back.
  If we, the people, have to live under that standard, then, so should 
our Federal Government.

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