[House Report 119-143]
[From the U.S. Government Publishing Office]
119th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 119-143
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VETERANS 2ND AMENDMENT PROTECTION ACT
_______
June 5, 2025.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Bost, from the Committee on Veterans' Affairs, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1041]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 1041) to amend title 38, United States Code, to
prohibit the Secretary of Veterans Affairs from transmitting
certain information to the Department of Justice for use by the
national instant criminal background check system, having
considered the same, reports favorably thereon with amendments
and recommends that the bill as amended do pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 3
Background and Need for Legislation.............................. 3
Hearings......................................................... 7
Subcommittee Consideration.......................................
Committee Consideration.......................................... 8
Committee Votes.................................................. 9
Committee Oversight Findings..................................... 21
Statement of General Performance Goals and Objectives............ 21
Earmarks and Tax and Tariff Benefits............................. 21
Committee Cost Estimate.......................................... 21
Budget Authority and Congressional Budget Office Estimate........ 21
Federal Mandates Statement....................................... 22
Advisory Committee Statement..................................... 22
Applicability to Legislative Branch.............................. 22
Statement on Duplication of Federal Programs..................... 22
Section-by-Section Analysis of the Legislation................... 23
Changes in Existing Law Made by the Bill as Reported............. 23
Minority Views................................................... 26
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Veterans 2nd Amendment Protection
Act''.
SEC. 2. PROHIBITION ON SECRETARY OF VETERANS AFFAIRS TRANSMITTAL OF
CERTAIN INFORMATION TO THE DEPARTMENT OF JUSTICE
FOR USE BY THE NATIONAL INSTANT CRIMINAL BACKGROUND
CHECK SYSTEM.
(a) In General.--Chapter 55 of title 38, United States Code, is
amended by inserting after section 5501A the following new section:
``Sec. 5501B. Prohibition on transmittal of certain information to the
Department of Justice for use by the national
instant criminal background check system
``The Secretary may not transmit to any entity in the Department of
Justice, for use by the national instant criminal background check
system established under section 103 of the Brady Handgun Violence
Prevention Act (34 U.S.C. 40901; Public Law 103-159; 107 Stat. 1541),
personally identifiable information of a beneficiary, solely on the
basis of a determination by the Secretary to pay benefits to a
fiduciary for the use and benefit of the beneficiary under section 5502
of this title, without the order or finding of a judge, magistrate, or
other judicial authority of competent jurisdiction that such
beneficiary is a danger to themselves or others.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 55 of such title is amended by inserting after the item
relating to section 5501A the following new item:
``5501B. Prohibition on transmittal of certain information to the
Department of Justice for use by the national instant criminal
background check system.''.
SEC. 3. NOTIFICATION OF LACK OF BASIS FOR THE SECRETARY OF VETERANS
AFFAIRS TO HAVE TRANSMITTED CERTAIN INFORMATION TO
THE DEPARTMENT OF JUSTICE FOR USE BY THE NATIONAL
INSTANT CRIMINAL BACKGROUND CHECK SYSTEM.
(a) In General.--Such chapter (as amended by section 2) is further
amended by inserting after section 5501B the following new section:
``Sec. 5501C. Notification of lack of basis for transmittal of certain
information to the Department of Justice for use by
the national instant criminal background check
system
``The Secretary shall, within 30 days of the enactment of the
Veterans 2nd Amendment Protection Act, and in accordance with section
103(e)(1)(D) of the Brady Handgun Violence Prevention Act (34 U.S.C.
40901(e)(1)(D); Public Law 103-159; 107 Stat. 1541), notify the
Attorney General that the basis for the transmittal, on or after
November 30, 1993, by the Secretary, of personally identifiable
information of a beneficiary, solely on the basis of a determination by
the Secretary to pay benefits to a fiduciary for the use and benefit of
the beneficiary under section 5502 of this title, to any entity in the
Department of Justice, for use by the national instant criminal
background check system established under section 103 of the Brady
Handgun Violence Prevention Act (34 U.S.C. 40901; Public Law 103-159;
107 Stat. 1541), does not apply, or no longer applies.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter (as amended by section 2) is further amended by inserting
after the item relating to section 5501B the following new item:
``5501C. Notification of lack of basis for transmittal of certain
information to the Department of Justice for use by the national
instant criminal background check system.''.
SEC. 4. DETERMINATION BY THE SECRETARY OF VETERANS AFFAIRS THAT A
PERSON IS MENTALLY INCOMPETENT IS INSUFFICIENT TO
TREAT SUCH PERSON AS A MENTAL DEFECTIVE.
(a) In General.--Such chapter (as amended by sections 2 and 3) is
further amended by inserting after section 5501C the following new
section:
``Sec. 5501D. Determination of mental incompetence is insufficient
basis to treat a person as a mental defective
``The Secretary shall not treat a person as having been adjudicated
as a mental defective solely on the basis that the Secretary has
determined that such person--
``(1) is mentally incompetent under section 3.353 of title
38, Code of Federal Regulations (or successor regulation); or
``(2) requires a fiduciary under section 5502 of this
title.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter (as amended by sections 2 and 3) is further amended by
inserting after the item relating to section 5501C the following new
item:
``5501D. Determination of mental incompetence is insufficient basis to
treat a person as a mental defective''.
Amend the title so as to read:
A bill to amend title 38, United States Code, to prohibit
the Secretary of Veterans Affairs from transmitting certain
information to the Department of Justice for use by the
national instant criminal background check system, and for
other purposes.
Purpose and Summary
H.R. 1041, the ``Veterans 2nd Amendment Protection Act,''
was introduced by Representative Mike Bost of Illinois on
February 6, 2025. The bill, as amended, would prohibit the
Secretary of the Department of Veterans Affairs (VA) from
transmitting the name and information of a veteran or a
beneficiary of VA benefits to the National Instant Criminal
Background Check System (NICS) solely on the basis that VA has
appointed them a fiduciary to help them manage their VA
benefits, unless there is an order or a finding of a judicial
authority that such veteran or beneficiary is a danger to
themselves or others. It would also require VA to notify the
Attorney General that the basis for all previous reporting of a
veteran to NICS solely because they were appointed a fiduciary,
does not apply or no longer applies, thereby activating the
F.B.I.'s statutory duty to update the NICS list accordingly.
Background and Need for Legislation
Section 1: Short Title
This Act may be cited as the ``Veterans 2nd Amendment
Protection Act.''
Section 2: Prohibition on Secretary of Veterans Affairs Transmittal of
Certain Information to the Department of Justice for Use by the
National Instant Criminal Background Check System
The Gun Control Act of 1968 (Pub. L. 90-617) (Gun Control
Act) makes it illegal for individuals ``adjudicated as a mental
defective'' to ship, transport, possess, or receive firearms
and ammunition. The Brady Handgun Violence Prevention Act (Pub.
L. 103-159) (Brady Act), enacted on November 30, 1993,
established the National Instant Criminal Background Check
System (NICS), a computer database used to store information
about individuals who are not eligible to transfer, receive, or
possess firearms and ammunition. The Brady Act requires
federally licensed gun dealers to use NICS to conduct a
background check on any person attempting to purchase a
firearm. State and federal agencies are required to report to
the Department of Justice (DOJ), the name and information of
individuals who have been ``adjudicated as a mental defective''
for inclusion in NICS.\1\
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\1\NICS Improvement Amendments Act of 2007 (Pub. L. 110-180); 18
U.S.C. Sec. 922.
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VA appoints fiduciaries for veterans and other
beneficiaries of VA benefits, who are unable to manage their VA
benefits on their own because of a disability. Fiduciaries
receive payments of VA funds on behalf of those beneficiaries
and disburse those funds for the beneficiaries' care and
support. VA will appoint a fiduciary for a person who is
determined by a VA career employee in the Veterans Benefits
Administration (VBA) to be ``mentally incompetent.'' VA defines
``mentally incompetent'' in its regulation 38 C.F.R.
Sec. 3.353(a) as a person ``who because of injury or disease
lacks the mental capacity to contract or to manage his or her
own affairs, including disbursement of funds without
limitation.''
Congress did not define the term ``adjudicated as a mental
defective'' in the Gun Control Act or the Brady Act. The Bureau
of Alcohol, Tobacco, Firearms and Explosives (ATF) promulgated
a regulation, which interprets the term ``adjudicated as a
mental defective'' to mean ``[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.'' 27 C.F.R. Sec. 478.11. VA and ATF
have concluded that a person who has been determined by VA to
be ``mentally incompetent'' has been ``adjudicated as a mental
defective.\2\
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\2\ ATF, ``Definitions for the Categories of Persons Prohibited
from Receiving Firearms,'' 62 Federal Register 34,637, 34,637 (June 27,
1997).
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As a result, for decades VA has reported the names and
information of veterans and other VA beneficiaries whom a VA
bureaucrat has determined to be ``mentally incompetent''
without a ruling by a judge or magistrate, to the DOJ for
inclusion in NICS. The determination of whether a veteran is
``mentally incompetent'' is made by a VA bureaucrat based on a
statement from a medical professional that the veteran is
unable to handle their VA compensation because of a disability.
The Committee understands that these statements do not indicate
one way or the other whether the person's disability causes
them to be a danger to themselves or others. In other words,
for decades VA bureaucrats have stripped over 250,000 veterans
of their Constitutional right to bear arms simply because they
need assistance from a fiduciary to handle their VA financial
compensation benefits.\3\
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\3\Active Entries in the NICS Indices as of December 31, 2024,
https://www.fbi.gov/file-repository/cjis/download-active-entries-in-
the-nics-indices-as-of-december-31-2023.pdf/view ; Active Entries in
the NICS Indices as of January 3, 2023, https://www.fbi.gov/file-
repository/cjis/active-
entries-in-the-nics-indices-by-state.pdf/view.
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Further, before VA sends their name to NICS, a veteran can
only dispute VA's proposed determination of mental incompetency
under 38 C.F.R. 3.101 and 3.353 by proving that they are able
to handle their finances. A veteran receiving VA compensation
may or may not wish to receive assistance from a VA-appointed
fiduciary to help them manage their compensation, but that is a
separate issue from whether they may wish to retain their
Constitutional right to bear arms. Only after VA has already
determined them incompetent to handle their VA financial
benefits, does a veteran have a separate opportunity to
petition VA for relief from inclusion in NICS. The burden falls
on the veteran to prove to a VA bureaucrat that they are not a
danger to themselves or others.\4\ The Committee is concerned
that a veteran who is appointed a fiduciary is not provided the
same Constitutional due process rights as a civilian, who must
be found to be a danger to themself or others by a judge, in a
court of law, before their name is transmitted to NICS.
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\4\Statement of Jordan B. Cohen, Congressional Research Service,
(January 23, 2025), https://docs.house.gov/meetings/VR/VR09/20250123/
117839/HHRG-119-VR09-Wstate-CohenJ-20250123.pdf; Congressional Research
Service, Gun Control, Veterans' Benefits, and Mental Incompetency
Determinations (July 14, 2023), https://crsreports.congress.gov/
product/pdf/R/R47626.
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The Committee understands that VA's reporting practice
discourages veterans from seeking mental health care from VA.
As Patrick Murray, Director, National Legislative Service,
Veterans of Foreign Wars of the United States (VFW) testified:
``The VFW hears from veterans that a negative consequence of
VA's current practice is that they are hesitant to seek mental
health care because they fear their firearms will be taken
away. This has created a significant stigma surrounding mental
health and has created a barrier to care for many.''\5\
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\5\Statement of Patrick Murray, Veterans of Foreign Wars of the
United States (February 25, 2025), https://docs.house.gov/meetings/VR/
VR00/20250225/117899/HHRG-119-VR00-Wstate-MurrayP-20250225.pdf.
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The Committee understands that VA's NICS reporting practice
perpetuates the harmful stigma that disabled veterans are
automatically dangerous. The Committee also understands that no
study has been conducted on veterans with fiduciaries to
determine whether they can be presumed to be dangerous to
themselves or others.\6\ Therefore, there is no data to support
any presumption that disabled veterans who need help from a
fiduciary to manage their finances are at greater risk of
firearm suicide or violence. In a May 5, 2025, letter to
Chairman Bost and Ranking Member Takano from Jennifer Mathis,
Deputy Director of the Bazelon Center for Mental Health Law,
Ms. Mathis stated:
\6\There is only one study that purports to find that veterans with
fiduciaries are at higher risk of firearm suicide, but this study did
not actually study any veterans with fiduciaries. See Jeffrey Swanson,
et al., Informing Federal Policy on Firearm Restrictions for Veterans
with Fiduciaries: Risk Indicators in the Post-Deployment Mental Health
Study, 45 Admin. and Policy in Mental Health and Mental Health Services
Rsch. 673, 673-83 (2018) (admitting that ``[a] limitation of the study
is that its outcome measures . . . do not directly assess the risk of
misusing a firearm, which is the ultimate issue for NICS reporting'';
and admitting that ``[t]his study was also limited with regard to its
sample and indirect measure of fiduciary need'').
The Bazelon Center for Mental Health Law supports the
amended version of H.R. 1041 . . . . [VA's NICS
reporting practice] is inconsistent with the statute it
purports to implement, has no evidentiary
justification, wrongly perpetuated inaccurate
stereotypes of individuals with mental disabilities as
dangerous, and if continued, would divert already
scarce VA resources away from efforts to address the
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agency's critical mission.
Ms. Mathis further stated:
``[T]he practice is an ineffective strategy to
address gun violence, devoid of any evidentiary basis,
targeting individuals with fiduciaries as potential
perpetrators of gun violence despite the lack of any
connection between a person's need for assistance
managing V.A. benefits and dangerousness or propensity
to engage in gun violence . . . . [T]he practice
perpetuates the prevalent false association of mental
health disabilities with violence and undermines
important efforts to promote community integration and
employment of people with disabilities.
To address this issue, this section would prohibit VA from
transmitting information to the DOJ for use by NICS of a person
solely because VA has determined that a person requires a
fiduciary to help them manage their VA benefits, without an
order or finding of a judge, magistrate, or other judicial
authority, that the person is a danger to themselves or others.
The Committee believes that this section is critical to
protect the Constitutional due process rights of veterans. This
change would also ensure that veterans are not subject to
different rules and NICS reporting standards compared to
civilians simply because those veterans require a fiduciary to
help them manage their VA financial compensation benefits. This
change would remove a barrier to veterans seeking VA mental
health care. This section would also be a critical step towards
removing the erroneous stigma that disabled veterans are
automatically dangerous.
Section 3: Notification of Lack of Basis for the Secretary of Veterans
Affairs to Have Transmitted Certain Information to the
Department of Justice for use by the National Instant Criminal
Background Check System
As of December 31, 2024, roughly 7.7 million individuals
are in NICS because they were ``adjudicated as a mental
defective'' by state and territorial courts. On the other hand,
roughly 206,000 individuals are in NICS pursuant to reporting
by federal agencies. Of that number, roughly 200,000 of those
individuals are on NICS pursuant to VA reporting. Thus, 97% of
all the individuals included in NICS due to federal agency
reporting are from VA. As discussed above, VA erroneously
interpreted the statutory term ``adjudicated as a mental
defective'' as including persons who satisfy VA's regulatory
definition of ``mentally incompetent'' under 38 C.F.R.
Sec. 3.353(a).
To address the hundreds of thousands of VA beneficiaries
have been already added to NICS solely because they require a
fiduciary, this section would require VA to notify the Attorney
General, in accordance with the notification requirement in 34
U.S.C. Sec. 40901(e)(1)(D) that the basis for reporting
beneficiaries to NICS since November 30, 1993, solely because
they have a fiduciary, does not apply or no longer applies.
This notification would require the F.B.I. to update the NICS
list accordingly.
The Committee believes that this section is important
because it would remedy the past due process and Second
Amendment rights violations of hundreds of thousands of
veterans already in NICS solely because they required a
fiduciary. Veterans on the NICS list solely for this reason
would be removed, thereby restoring their Constitutional right
to purchase and possess firearms to protect themselves and
their families. Veterans on the NICS list for other reasons--
i.e., because another federal agency or state or territorial
court found them to be a danger to themselves or others and
``adjudicated them as a mental defective''--would not be
removed from the NICS list under this section.
Section 4: Determination by the Secretary of Veterans Affairs that a
Person is Mentally Incompetent is Insufficient to Treat Such
Person as a Mental Defective
As discussed above, VA erroneously interpreted Congress's
intent when it interpreted the statutory ``adjudicated as a
mental defective'' as including persons who satisfy VA's
regulatory definition of ``mentally incompetent'' under 38
C.F.R. Sec. 3.353(a) and who therefore require a fiduciary to
help them manage their finances.
To address this issue, this section would prohibit the
Secretary from treating a person as having been ``adjudicated
as a mental defective'' solely on the basis such person meets
the definition of ``mentally incompetent'' under 38 C.F.R.
Sec. 3.353(a) and requires a fiduciary.
The Committee believes that this section is critical to
ensure that statutory category of ``adjudicated as a mental
defective'' is never again misinterpreted by VA as including VA
benefits beneficiaries who simply require a fiduciary to help
them manage their VA benefits.
Hearings
On February 25, 2025, the Committee on Veterans Affairs
held a legislative hearing on H.R. 1041 and other bills that
were pending before the committee.
The following witnesses testified:
Ms. Beth Murphy, Acting Principal Deputy
Undersecretary for Benefits, Veterans Benefits
Administration, U.S. Department of Veterans Affairs;
Ms. Tracey Therit, Chief Human Capitol Officer, Office
of Human Resources and Administration, Operations,
Security, and Preparedness, Veterans Health
Administration, U.S. Department of Veterans Affairs;
Dr. Sachin Yende, Chief Medical Officer, Integrated
Veteran Care, Veterans Health Administration, U.S.
Department of Veterans Affairs; Mr. Jim Whaley, Chief
Executive Officer, Mission Roll Call; Mr. Patrick
Murray, Director, National Legislative Service,
Veterans of Foreign Wars of the U.S.; and The Honorable
Max Rose, Senior Advisor, Vet Voice Foundation.
The following individuals and organizations submitted
statements for the record: American Federation of
Government Employees, AFL-CIO (AFGE); Disabled American
Veterans (DAV); Whistleblowers of America (WA);
Veterans Healthcare Policy Institute (VHPI); National
Association of Gun Rights (NAGR); National Association
of Veterans' Research and Education Foundations
(NAVREF); Concerned Veterans for America (CVA); and
Paralyzed Veterans of America (PVA).
Additionally, a Joint-Letter was offered by the
following organizations: American Federation of Labor
and Congress of Industrial Organizations (AFL-CIO);
American Federation of Government Employees (AFGE);
American Federation of State, County, and Municipal
Employees (AFSCME); American Federation of Teachers
(AFT); International Brotherhood of Teamsters (IBT);
International Association of Firefighters (IAFF);
Laborers' International Union of North America (LIUNA);
National Association of Government Employees, SEIU
(NAGE); National Federation of Federal Employees
(NFFE); National Nurses United (NNU); National Veterans
Affairs Council, AFGE (NVAC); and the Service Employees
International Union (SEIU).
Ranking Member Takano submitted the following
documents for the record: A letter to The Honorable
Morgan Luttrell and The Honorable Morgan McGarvey from
Everytown for Gun Safety; a letter to The Honorable
Mike Bost and The Honorable Mark Takano from the
National Fraternal Order of Police.
Committee Consideration
On May 6, 2025, the full Committee met in an open markup
session with a quorum being present, and ordered H.R. 1041, as
amended, be reported favorably to the House of Representatives
by a recorded vote of 13 ayes, 11 noes. During consideration of
the bill, the following amendments were considered:
An amendment in the nature of a substitute to H.R.
1041 offered by Chairman Bost to require VA to notify
the Attorney General that the basis for all previous
reporting of veterans to NICS, solely because they have
a fiduciary, does not apply or no longer applies. This
would also prohibit the Secretary of Veterans Affairs
from treating any veteran as ``a person adjudicated as
amental defective,'' solely because that veteran has a
fiduciary. This amendment in the nature of a substitute
was agreed to by a recorded vote of 13 ayes, 11 noes.
An amendment to the amendment in the nature of a
substitute to H.R. 1041 was offered by Representative
Morrison to provide the following exceptions to the
NICS reporting prohibition under the bill: exceptions
for a beneficiary who has been diagnosed with
schizophrenia, a mental illness with psychotic
features, dementia of any type, Alzheimer's disease,
frontotemporal lobar degeneration, Prion disease,
advanced Parkinson's disease, and Huntington's disease.
The amendment was not agreed to by a recorded vote of
11 ayes, 13 noes.
An amendment to the amendment in the nature of a
substitute to H.R. 1041 was offered by Ranking Member
Takano to replace sections two through four of the
amendment in the nature of a substitute, with
provisions that would require VA, when determining
whether a veteran is mentally competent to handle their
VA funds, to make an additional determination as to
whether the veteran is a danger to themselves or
others. Such determination would be based on opinion(s)
from a licensed mental health professional, and if it
is determined that the veteran is not a danger to
themselves or others, VA would be prohibited from
submitting their name to NICS solely because the
veteran is unable to manage their VA funds. Further, if
it is determined that a beneficiary is not a danger to
themselves or others, the amendment would allow VA to
still determine that a beneficiary is not mentally
competent to manage their VA benefits. The amendment
was not agreed to by a recorded vote of 11 ayes, 13
noes.
An amendment to the amendment in the nature of a
substitute to H.R. 1041 was offered by Representative
McGarvey to require the U.S. Court of Appeals for
Veterans Claims (CAVC) be the judicial body that must
issue an order or finding that the person is a danger
to themselves or others. The amendment would also
require the CAVC to establish expedited procedures for
making such orders or findings. The amendment was not
agreed to by a recorded vote of 11 ayes, 13 noes.
An amendment to the amendment in the nature of a
substitute to H.R. 1041 was offered by Representative
Morrison to prohibit VA from sending names for removal
from NICS until after the VA Secretary submits to
Congress certification in writing that the underlying
legislation's implementation will not lead to an
increase in the rate of death by suicide using a
firearm among veterans who have VA-assigned
fiduciaries. The amendment was not agreed to by a
recorded vote of 11 ayes, 13 noes.
A motion by Representative Bergman to report H.R. 1041, as
amended, favorably to the House of Representatives was agreed
to by a recorded vote of 13 ayes, 11 noes.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report the legislation and amendments
thereto.
An amendment in the nature of a substitute to H.R. 1041
offered by Chairman Bost was agreed to by a recorded vote of 13
ayes, 11 noes. The names of Members voting for and against
follow:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
An amendment to the amendment in the nature of a substitute
to H.R. 1041 offered by Representative Morrison was not agreed
to by a recorded vote of 13 ayes, 11 noes. The names of Members
voting for and against follow:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
An amendment to the amendment in the nature of a substitute
to H.R. 1041 offered by Ranking Member Takano was not agreed to
by a recorded vote of 11 ayes, 13 noes. The names of Members
voting for and against follow:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
An amendment to the amendment in the nature of a substitute
to H.R. 1041 offered by Representative McGarvey was not agreed
to by a recorded vote of 11 ayes, 13 noes. The names of Members
voting for and against follow:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
A second amendment to the amendment in the nature of a
substitute to H.R. 1041 offered by Representative Morrison was
not agreed to by a recorded vote of 11 ayes, 13 noes. The names
of Members voting for and against follow:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Final passage of H.R. 1041, as amended, was agreed to by a
recorded vote of 13 ayes, 11 noes. The names of Members voting
for and against follow:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives of H.R. 1041, as amended, are to ensure
that veterans and their families can access their VA benefits
without any violation of their Constitutional rights and that
prior violations of their Constitutional rights are remedied.
Earmarks and Tax and Tariff Benefits
H.R. 1041, as amended, does not contain any Congressional
earmarks, limited tax benefits, or limited tariff benefits as
defined in clause 9 of rule XXI of the Rules of the House of
Representatives.
Committee Cost Estimate
The Committee adopts as its own the Congressional Budget
Office cost estimate on this measure.
Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause (3)(c)(3) of rule XIII of the Rules of
the House of Representatives, the following is the cost
estimate for H.R. 1041, as amended, provided by the
Congressional Budget Office (CBO) pursuant to section 402 of
the Congressional Budget Act of 1974:
H.R. 1041 would prohibit the Department of Veterans Affairs
(VA) from reporting certain information to the Department of
Justice (DOJ) for use in the National Instant Criminal
Background Check System (NICS). That system is used by licensed
firearms dealers to determine whether a person can legally
purchase a firearm.
VA appoints fiduciaries to manage benefits for people who
have been determined unable to manage benefits on their own.
Under current law, in some cases, VA reports that information
to the NICS. As a result of that reporting, a person may be
deemed ineligible to purchase a firearm. (The Full-Year
Continuing Appropriations and Extensions Act, 2025, prohibits
the department from making such reports in the current fiscal
year.)
Under the bill, VA would be prohibited from transmitting
information to the NICS about a person solely because a
fiduciary manages their VA benefits. The department could make
such a report, however, if a judge finds that the person poses
a danger to themselves or others. VA must also notify DOJ that
any information previously transmitted about people who use a
fiduciary no longer applies. CBO estimates that implementing
the bill could reduce administrative costs by decreasing VA's
reporting to the NICS. Conversely, VA could incur additional
costs for seeking judicial findings that a person poses a
danger and should be reported to the NICS. CBO estimates that,
in either case, the net change in spending would not be
significant. Any related spending would be subject to
appropriation.
The CBO staff contact for this estimate is Logan Smith. The
estimate was reviewed by Christina Hawley Anthony, Deputy
Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
Federal Mandates Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4 is inapplicable to H.R. 1041, as
amended.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act would be created by H.R.
1041, as amended.
Applicability to Legislative Branch
The Committee finds that H.R. 1041, as amended, does not
relate to the terms and conditions of employment or access to
public services or accommodations within the meaning of
section102(b)(3) of the Congressional Accountability Act.
Statement on Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee finds that no provision
of H.R. 1041, as amended, would establish or reauthorize a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 would establish the short title of the bill as
the ``Veterans 2nd Amendment Protection Act.''
Section 2. Prohibition on Secretary of Veterans Affairs transmittal of
certain information to the Department of Justice for use by the
National Instant Criminal Background Check System
Section 2 would amend Title 38, U.S. Code, Chapter 55, by
creating a new section 5501B that would prohibit VA from
transmitting to any entity in the DOJ, for use by NICS, the
names and personally identifiable information of a beneficiary
of VA benefits for whom VA has assigned a fiduciary to assist
with their VA benefits under 38 U.S.C. Sec. 5502, unless there
is an order or finding of a judge, magistrate, or other
judicial authority, that such beneficiary is a danger to
themselves or others.
Section 3. Notification of lack of basis for the Secretary of Veterans
Affairs to have transmitted certain information to the
Department of Justice for use by the National Instance Criminal
Background Check System
Section 3 would amend Title 38, U.S. Code, Chapter 55, by
creating a new section 5501C that would require VA, within 30
days of enactment, to notify the Attorney General, in
accordance with 34 U.S.C. Sec. 40901(e)(1)(D), that the basis
for the transmittal of a beneficiary's personal information to
the DOJ for use by NICS solely because VA has determined that
beneficiary requires a fiduciary, does not apply, or no longer
applies.
Section 4. Determination by the Secretary of Veterans Affairs that a
person is mentally incompetent is insufficient to treat such
person as a mental defective
Section 4 would amend Title 38, U.S. Code, Chapter 55 by
creating a new section 5501D that would prohibit VA from
treating a person as having been adjudicated as a mental
defective, solely because that person is mentally incompetent
under 38 C.F.R. Sec. 3.353 or requires a fiduciary under
section 5502 of title 38.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
TITLE 38, UNITED STATES CODE
* * * * * * *
PART IV--GENERAL ADMINISTRATIVE PROVISIONS
* * * * * * *
CHAPTER 55--MINORS, INCOMPETENTS, AND OTHER WARDS
Sec.
5501. Commitment actions.
* * * * * * *
5501B. Prohibition on transmittal of certain information to the
Department of Justice for use by the national instant criminal
background check system.
5501C. Notification of lack of basis for transmittal of certain
information to the Department of Justice for use by the
national instant criminal background check system.
5501D. Determination of mental incompetence is insufficient basis to
treat a person as a mental defective.
* * * * * * *
Sec. 5501B. Prohibition on transmittal of certain information to the
Department of Justice for use by the national
instant criminal background check system
The Secretary may not transmit to any entity in the
Department of Justice, for use by the national instant criminal
background check system established under section 103 of the
Brady Handgun Violence Prevention Act (34 U.S.C. 40901; Public
Law 103-159; 107 Stat. 1541), personally identifiable
information of a beneficiary, solely on the basis of a
determination by the Secretary to pay benefits to a fiduciary
for the use and benefit of the beneficiary under section 5502
of this title, without the order or finding of a judge,
magistrate, or other judicial authority of competent
jurisdiction that such beneficiary is a danger to themselves or
others.
Sec. 5501C. Notification of lack of basis for transmittal of certain
information to the Department of Justice for use by
the national instant criminal background check
system
The Secretary shall, within 30 days of the enactment of the
Veterans 2nd Amendment Protection Act, and in accordance with
section 103(e)(1)(D) of the Brady Handgun Violence Prevention
Act (34 U.S.C. 40901(e)(1)(D); Public Law 103-159; 107 Stat.
1541), notify the Attorney General that the basis for the
transmittal, on or after November 30, 1993, by the Secretary,
of personally identifiable information of a beneficiary, solely
on the basis of a determination by the Secretary to pay
benefits to a fiduciary for the use and benefit of the
beneficiary under section 5502 of this title, to any entity in
the Department of Justice, for use by the national instant
criminal background check system established under section 103
of the Brady Handgun Violence Prevention Act (34 U.S.C. 40901;
Public Law 103-159; 107 Stat. 1541), does not apply, or no
longer applies.
Sec. 5501D. Determination of mental incompetence is insufficient basis
to treat a person as a mental defective
The Secretary shall not treat a person as having been
adjudicated as a mental defective solely on the basis that the
Secretary has determined that such person--
(1) is mentally incompetent under section 3.353 of
title 38, Code of Federal Regulations (or successor
regulation); or
(2) requires a fiduciary under section 5502 of this
title.
* * * * * * *
MINORITY VIEWS
On May 6, 2025, the full House Committee on Veterans'
Affairs met in open markup and considered H.R. 1041, the
Veterans 2nd Amendment Protection Act, introduced by Chairman
Mike Bost. The measure was ordered favorably reported to the
full House, with an Amendment in the Nature of a Substitute, on
a straight party line vote, with Committee Democrats united in
opposition.
Sadly, this legislation not only carries forward the
Majority's flawed and dangerous language from H.R. 705\1\ in
the previous Congress, but H.R. 1041 as reported expands that
language to include new provisions which exacerbate the
increased risk of harm inherent in the underlying legislation.
Accordingly, Committee Democrats have, and must continue to,
reject this legislation.
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\1\For Minority Views on H.R. 705 from the 118th Congress, see, H.
Rep. 118-677 (118th Cong).
---------------------------------------------------------------------------
As with previous versions of this bill, H.R. 1041 would
prevent the Department of Veterans Affairs (VA) from reporting
information on a beneficiary in its Fiduciary Program to the
National Instant Criminal Background Check System (NICS)
without a determination from a judicial body that the
beneficiary poses a potential danger to themselves or others.
This provision is based on several false premises: (1) that
VA's Fiduciary Program bases its decisions on financial acumen,
(2) that there is insufficient due process in VA's system to
protect the constitutional rights of beneficiaries, and (3)
that only judicial review is sufficient to satisfy due process.
Regarding the first premise: according to VA's testimony in
this and previous years, as well as program guidelines,
decisions on whether to appoint a fiduciary for a beneficiary
are based on the medical evidence on record, not a math test.
It is that medical evidence, which often includes a mental
health diagnosis such as schizophrenia, dementia, Alzheimer's
disease, Parkinson's disease and others, which leads VA to
adjudicate that a beneficiary is unable to manage their own
finances.
On the second: regarding the due process protections
already built into VA's system in compliance with the
Administrative Procedures Act (APA) and the NICS Improvement
Amendments Act (NIAA)\2\, veterans and other beneficiaries
currently have significant avenues for redress. VA notifies
beneficiaries of the consequences of their proposed
determination, including NICS reporting requirements as
required by the APA and the NIAA. They may then appeal both the
determination to appoint a fiduciary, and the subsequent
reporting to NICS, independently of one another and at several
points in the process. Moreover, decisions regarding VA
benefits determinations are already able to be appealed to
judicial authorities such as the Court of Appeals for Veterans'
Claims and the U.S. Court of Appeals for the Federal Circuit.
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\2\Pub. L. No. 110-180 (110th Cong., 2008).
---------------------------------------------------------------------------
And with respect to the third premise: in Welch v. US
(1985), the First Circuit stated, ``All due process requires is
that a statutory prohibition be . . . set out in terms that the
ordinary person exercising ordinary common sense can
sufficiently understand and comply with, without sacrifice to
the public interest.''\3\ NIAA requires VA to give multiple
notices, both oral and written, that mention what the term
``adjudicated as a mental defective'' means and how it applies
to beneficiaries, what penalties there are for violating it,
and what relief from such disability with respect to firearms
is available under federal law, even before any proceedings to
adjudicate a person as a ``mental defective'' begins.
---------------------------------------------------------------------------
\3\750 F.2d 1101 (1st Cir. 1985).
---------------------------------------------------------------------------
VA is also required to follow the 21st Century Cures
Act,\4\ which codified existing procedural due process policies
and regulations of the VA, which is in line with the Fifth
Amendment Due Process Clause's notice and fair warning
requirements. VA has to provide a notice of the proposed
determination and all supporting evidence, and an opportunity
for the beneficiary to request a hearing, be represented by
counsel and present evidence, including from a medical
professional. NIAA also requires the VA to notify beneficiaries
assigned a fiduciary of the ramifications of metal incompetency
determinations and the possible loss of their gun rights due to
their name being placed in NICS. So, VA's administrative
processes clearly satisfy constitutional muster with respect to
due process.
---------------------------------------------------------------------------
\4\Pub. L. No. 114-225 (114th Cong., 2016).
---------------------------------------------------------------------------
As mentioned previously, the reported language of H.R. 1041
goes beyond the addition of a layer of judicial review on an
already lengthy and rigorous process. This bill also contains a
provision to make it effective retroactively. This would mean
all beneficiaries currently on the NICS list because of VA
reporting would be removed upon enactment, without any
consideration of whether or not that person warrants removal or
poses a danger to themselves or others. This is contrary to the
Majority's stated desire for these determinations of
``dangerousness'' for new transmittals and represents a
dangerous level of uncertainty.
Additionally, this bill clumsily attempts to sever the link
between VA's mental competency determinations, and the
definition of ``adjudicated as mental defective'' under the
Brady Handgun Violence Prevention Act and the Gun Control
Act.\5\ According to VA's testimony before the Committee, the
language in the bill is insufficient to accomplish the goal.
The Minority concurs with this interpretation and would add
that the language in the bill would only serve to put
beneficiaries at risk of unwittingly committing a felony. By no
longer being on the NICS list, while still being considered
ineligible to purchase and own a firearm, beneficiaries may
attempt and even succeed in purchasing a firearm. Therefore
violating the law and making them subject to prosecution.
---------------------------------------------------------------------------
\5\Pub. L. No. 103-159 (103rd Cong., 1993).
---------------------------------------------------------------------------
Lastly, there is one aspect of the Majority's arguments
about this bill that the Minority does agree with. The stigma
around seeking mental health help for fear of losing Second
Amendment rights is real and deserves to be addressed in a
meaningful way. However, it is part of the broader issue of
misinformation and disinformation propagated online and
elsewhere. It is a perception issue that the Majority and,
unfortunately, many Veterans Service Organizations are
perpetuating, both through this bill and in their failure to
denounce the rumors as untrue. In fact, there are documented
greater hurdles to seeking care including convenience and cost.
And the Minority will note that the Veterans Health
Administration, where veterans would be receiving mental
healthcare, plays absolutely no role in the Fiduciary Process
and does not ever report patients to NICS. Moreover, according
to recent Federal Bureau of Investigation data,\6\
beneficiaries reported to NICS by VA make up only 199,455 or
0.6 percent of a total 33,025,815 of entries in the database.
---------------------------------------------------------------------------
\6\Department of Justice, Federal Bureau of Investigation, Criminal
Justice Information Services Division, Active Entries in the NICS
Indices as of December 31, 2024. https://www.fbi.gov/file-repository/
cjis/download-active-entries-in-the-nics-indices-as-of-december-31-
2023.pdf.
---------------------------------------------------------------------------
During full Committee markup on this measure, Committee
Democrats offered several amendments in an attempt to improve
the legislation. Those amendments included, among others, an
amendment that would strike the underlying bill and replace it
with language stating that VA cannot report beneficiaries to
NICS until obtaining a secondary mental health determination,
and an amendment to exempt those with the most serious mental
health conditions from the underlying bill's prohibition on
NICS reporting. Committee Democrats felt both those amendments
would have significantly improved the underlying bill and
struck a fair balance between the Majority's desire to expand
firearms ownership and Committee Democrats' desire to protect
beneficiaries and those around them from the potential for
harm. As in the past, both amendments were voted down on a
party-line roll call vote, along with many other amendments
that would have marked a much-needed shift away from the
Majority's wrongheaded policy choice.
For these reasons and more, Committee Democrats continue to
oppose this legislation. We will recommend the broader House
reject the measure should it come to the floor of the full
House for consideration.
Mark Takano,
Ranking Member.
[all]