[Senate Report 113-86]
[From the U.S. Government Publishing Office]
Calendar No. 164
113th Congress Report
SENATE
1st Session 113-86
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VETERANS SECOND AMENDMENT PROTECTION ACT
_______
September 4, 2013.--Ordered to be printed
Filed, under authority of the order of the Senate of August 1, 2013.
_______
Mr. Sanders, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
[To accompany S. 572]
The Committee on Veterans' Affairs (hereinafter, ``the
Committee''), to which was referred the bill (S. 572), to amend
title 38, United States Code, to clarify the conditions under
which certain persons may be treated as adjudicated mentally
incompetent for certain purposes, having considered the same,
reports favorably thereon without amendment and recommends that
the bill do pass.
Introduction
On March 14, 2013, Committee Ranking Minority Member
Richard Burr introduced S. 572, which would amend the criteria
used by the Department of Veterans Affairs (hereinafter,
``VA'') in reporting names of VA beneficiaries to the Federal
Bureau of Investigation (hereinafter, ``FBI'') for entry into
the National Instant Criminal Background Check System
(hereinafter, ``NICS''). Committee Members John Boozman and
Jerry Moran are original cosponsors, as are Senators Saxby
Chambliss, Mike Crapo, Michael B. Enzi, James M. Inhofe, James
E. Risch, Pat Roberts, John Thune, David Vitter, and Roger F.
Wicker. Senators Thad Cochran and Jeff Sessions were later
added as cosponsors. The bill was referred to the Committee.
Committee Hearing
On June 12, 2013, the Committee held a hearing on
legislation pending before the Committee at which testimony on
S. 572, among other bills, was offered by Curtis L. Coy, Deputy
Under Secretary for Economic Opportunity, Veterans Benefits
Administration, Department of Veterans Affairs; Ryan Gallucci,
Deputy Director, National Legislative Service, Veterans of
Foreign Wars of the United States; and Ian De Planque, Deputy
Director, National Legislative Commission, The American Legion.
Committee Meeting
On July 24, 2013, the Committee met in open session to
consider legislation pending before the Committee. Among the
measures so considered was S. 572. The Committee voted, without
dissent, to report favorably S. 572 to the Senate.
Summary of S. 572 as Reported
S. 572 consists of two sections, summarized below:
Section 1 would provide a short title.
Section 2 would clarify the conditions under which VA
beneficiaries may be treated as adjudicated mentally defective
for purposes of reporting their names to the FBI for entry into
the NICS.
Background and Discussion
Sec. 2. Conditions for treatment of certain persons as adjudicated
mentally incompetent for certain purposes.
Section 2 would clarify the conditions under which VA
beneficiaries may be treated as adjudicated mentally defective
for purposes of reporting their names to the FBI for entry into
the NICS.
Background. The Gun Control Act of 1968 (hereinafter,
``GCA''), Public Law 90-618, and subsequent amendments
established categories of persons who are prohibited from
receiving or possessing firearms. Included among the categories
is any person who has been ``adjudicated as a mental defective
or who has been committed to any mental institution.'' Section
478.11 of title 27, Code of Federal Regulations, defines the
phrase ``adjudicated as a mental defective'' as follows:
(a) 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:
(1) Is a danger to himself or to others; or
(2) Lacks the mental capacity to contract or
manage his own affairs.
The Brady Handgun Violence Prevention Act of 1993
(hereinafter, the ``Brady Act''), Public Law 103-159, required
the Attorney General to establish a system to assist federally
licensed gun dealers in determining whether a prospective gun
buyer is prohibited under the GCA from purchasing a firearm.
The system developed pursuant to the Brady Act, NICS, is a
computerized database operated by the FBI NICS Section. The
NICS can be queried by gun dealers to determine whether the
name of a prospective buyer is on the list and, therefore,
legally prohibited from purchasing a firearm.
The Brady Act also requires federal agencies, upon the
request of the Attorney General, to submit to the FBI
information on persons prohibited from purchasing a firearm.
The Attorney General made such a request to VA in 1998. Under a
Memorandum of Understanding entered into between the FBI and
VA, VA agreed to make available for inclusion in the NICS
database information about VA beneficiaries who are determined
to be mentally incompetent on account of their inability to
contract or manage their own affairs pursuant to section 3.353
of title 38, Code of Federal Regulations. Determinations of
incompetency under section 3.353 result in an appointment of a
fiduciary.
The evidence gathered to support a finding of incompetency,
under section 3.353 of VA's regulations, is used to inform a
judgment about whether a beneficiary is capable of managing his
or her VA benefit payments. No evidence is gathered as part of
this process to inform a judgment about whether a beneficiary
presents a danger to himself, herself, or others or whether the
individual should be prohibited from purchasing, possessing, or
operating a firearm. Furthermore, although beneficiaries are
entitled to a hearing once notified that it is proposed they
will be determined incompetent, the initial hearing is before
VA personnel, not an independent authority.
According to VA, as of April 2013, there were 143,580 VA
beneficiaries who require a fiduciary on the NICS list,
including 83,764 veterans, 42,636 surviving spouses, 2,733
minor children, and 86 dependent parents. Although the NICS
reporting requirements apply to all federal agencies, over 99
percent of all names submitted by the federal government to the
NICS by reason of mental health have been submitted by VA. That
is true despite the fact that other federal agencies, such as
the Social Security Administration, appoint representatives to
manage benefit payments for their beneficiaries in a manner
similar to VA's process.
Committee Bill. S. 572 would amend chapter 55 of title 38,
United States Code, by adding a new section, to clarify that in
any case arising out of VA's administration of benefits under
title 38, a VA beneficiary who is mentally incapacitated,
deemed mentally incompetent, or experiencing an extended loss
of consciousness, shall not be considered adjudicated as a
mental defective under the GCA without the order or finding of
a judge, magistrate, or other judicial authority of competent
jurisdiction that such individual is a danger to himself,
herself, or others.
Committee Bill Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate, the Committee, based on
information supplied by the Congressional Budget Office
(hereinafter, ``CBO''), estimates that enactment of S. 572
would, relative to current law, have no significant budgetary
impact. Enactment of S. 572 would not affect the budget of
state, local, or tribal governments.
The cost estimate provided by CBO follows:
Congressional Budget Office,
Washington, DC, August 8, 2013.
Hon. Bernard Sanders,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 572, the Veterans
Second Amendment Protection Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dwayne M.
Wright.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure.
S. 572--Veterans Second Amendment Protection Act
S. 572 would modify an existing requirement that certain
individuals determined to be mentally incompetent by the
Department of Veterans Affairs (VA) be prohibited from
purchasing or possessing legal firearms. CBO expects that
implementing S. 572 would have no significant budgetary impact.
Under current law, when VA deems individuals to be mentally
incapacitated, mentally incompetent, experiencing an extended
loss of consciousness, or otherwise unable to manage their own
affairs, it is required to provide that information to the
Department of Justice (DOJ). Such individuals are then added to
the list of those prohibited from purchasing or possessing
firearms. Under S. 572, a judicial authority would have to
determine that veterans are dangerous before VA would be
required to report them to DOJ. CBO expects that such a
requirement would have an insignificant impact on VA's
workload.
Enacting S. 572 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
S. 572 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
On May 13, 2013, CBO transmitted a cost estimate for
H.R. 602, the Veterans 2nd Amendment Protection Act, as ordered
reported by the House Committee on Veterans' Affairs on May 8,
2013. That bill's language is similar to the text of S. 572 and
CBO similarly estimated no significant budgetary impact for
H.R. 602.
The CBO staff contact for this estimate is Dwayne M.
Wright. The estimate was approved by Peter H. Fontaine,
Assistant Director for Budget Analysis.
Regulatory Impact Statement
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee on Veterans'
Affairs has made an evaluation of the regulatory impact that
would be incurred in carrying out S. 572. The Committee finds
that S. 572 would not entail any regulation of individuals or
businesses or result in any impact on the personal privacy of
any individuals and that the paperwork resulting from enactment
would be minimal.
Tabulation of Votes Cast in Committee
In compliance with paragraph 7 of rule XXVI of the Standing
Rules of the Senate, the following is a tabulation of votes
cast in person or by proxy by Members of the Committee on
Veterans' Affairs at its July 24, 2013, meeting. On that date,
the Committee considered and ordered reported S. 572, a bill
providing that VA beneficiaries who are found in need of a
fiduciary to handle their VA benefits will no longer be
included in the NICS unless a judge, magistrate, or other
judicial authority determines that they are a danger to
themselves or others. The bill, S. 572, was agreed to by a
voice vote.
Agency Report
On June 12, 2013, Curtis Coy, Deputy Under Secretary for
Economic Opportunity, Veterans Benefits Administration,
Department of Veterans Affairs, appeared before the Committee
on Veterans' Affairs and submitted testimony on, among other
things, S. 572. Excerpts from this statement are reprinted
below:
STATEMENT OF CURTIS COY, DEPUTY UNDER SECRETARY FOR ECONOMIC
OPPORTUNITY, VETERANS BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF
VETERANS AFFAIRS
* * * * * * *
s. 572
S. 572, the ``Veterans Second Amendment Protection Act,''
would provide that a person who is mentally incapacitated,
deemed mentally incompetent, or unconscious for an extended
period will not be considered adjudicated as a ``mental
defective'' for purposes of the Brady Handgun Violence
Prevention Act in the absence of an order or finding by a
judge, magistrate, or other judicial authority that such person
is a danger to himself, herself, or others. The bill would, in
effect, exclude VA determinations of incompetency from the
coverage of the Brady Handgun Violence Prevention Act. VA does
not support this bill.
VA determinations of mental incompetency are based
generally on whether a person, because of injury or disease,
lacks the mental capacity to manage his or her own financial
affairs. We believe adequate protections can be provided to
these Veterans under current statutory authority. Under the
[National Instant Criminal Background Check System] NICS
Improvement Amendments Act of 2007, individuals whom VA has
determined to be incompetent can have their firearms rights
restored in two ways: First, a person who has been adjudicated
by VA as unable to manage his or her own affairs can reopen the
issue based on new evidence and have the determination
reversed. When this occurs, VA is obligated to notify the
Department of Justice to remove the individual's name from the
roster of those barred from possessing and purchasing firearms.
Second, even if a person remains adjudicated incompetent by VA
for purposes of handling his or her own finances, he or she is
entitled to petition VA to have firearms rights restored on the
basis that the individual poses no threat to public safety. VA
has relief procedures in place, and we are fully committed to
continuing to conduct these procedures in a timely and
effective manner to fully protect the rights of our
beneficiaries.
Also, the reliance on an administrative incompetency
determination as a basis for prohibiting an individual from
possessing or obtaining firearms under Federal law is not
unique to VA or Veterans. Under the applicable Federal
regulations implementing the Brady Handgun Violence Prevention
Act, any person determined by a lawful authority to lack the
mental capacity to manage his or her own affairs is subject to
the same prohibition. By exempting certain VA mental health
determinations that would otherwise prohibit a person from
possessing or obtaining firearms under Federal law, the bill
would create a different standard for Veterans and their
survivors than that applicable to the rest of the population
and could raise public safety issues.
The enactment of S. 572 would not impose any costs on VA.