Prepared Floor Statement of Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Veterans’ Second Amendment Rights Restoration Act of 2018
February 6, 2018
I would like to raise a very important issue impacting our veteran population: the systematic denial of their 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” to solve the problem.
The legislation is about fidelity to the Constitution and Bill of Rights. It is also about due process and fairness for veterans.
What this is NOT about is allowing anyone to purchase a firearm who is prohibited under current law or regulations.
I want that to be clear off the bat so that no one misrepresents this as some effort to let people own firearms who would normally be prohibited.
This legislation is needed because a disturbing trend has occurred in the past decade.
The VA has been reporting veterans to the National Instant Criminal Background Check System (the national gun ban list) just because the VA has determined the veteran requires a fiduciary to administer benefit payments.
Once on the gun ban list, a veteran is outlawed from owning or possessing firearms.
It is crucial to note that the regulations the VA is relying on are from the 1970s.
That predates 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:
“Ratings agencies have sole authority to make official determinations of competency or incompetency for purpose of: insurance and…disbursement of benefits.”
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 someone managing their checkbook.
How is this happening?
Federal law requires that before a person is reported to the gun ban list, they be determined a “mental defective.”
The Bureau of Alcohol, Tobacco, and Firearms 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 ATF regulation can be made to fit within its own preexisting regulatory structure for assigning a fiduciary, thus requiring reporting to the gun ban list.
The intent and purpose between these two regulations are totally 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 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 where the mere possession of a firearm constitutes a danger to self or others.
That decision is never made by the VA before submitting names to the gun ban list.
As such, imposing a gun ban is a harsh result that could sweep up veterans that are fully capable of appropriately operating a firearm.
And it gets worse.
When veterans are placed on the gun ban list, they must prove they are not dangerous to the public in order to get their names removed.
That “dangerousness” standard is much higher than the mere assignment of a fiduciary.
Thus, veterans are subject to a more rigorous and demanding evidentiary standard to get their names off the gun ban list than the federal government must prove to put their names on it.
Mr. President, that is patently unfair.
I also believe it is unconstitutional.
When dealing with a fundamental constitutional right like is 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 VA reported 167,815 veterans to the gun ban list for assigning a fiduciary.
That’s 167,815 out of 171,083 and 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, not one of those names has been reported because a veteran has been deemed 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, 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 on the gun ban list supplied by the VA do not pose a danger and should be removed.
I want to thank his staff for working with mine 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.
My bipartisan legislation adds a new step before the VA can report names to the gun ban list.
That 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 their firearms.
That’s the same standard that the veteran must satisfy currently in order to get their 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 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.
And it provides an avenue for every veteran already on the gun ban list to get their 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
It does require the VA to provide notice to every veteran on the list of their right to go through the new process to have their names removed.
Should a veteran choose to do that, the protections, process, procedure and standards set forth in my bill would then apply to them.
Every veteran is free to apply for relief.
Every veteran will be treated equally under my bill.
That’s the fair thing to do.
That’s the constitutionally sound way to manage this process.
The bill does provide authority for the government to seek an emergency order if they believe a veteran is a serious and imminent risk.
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 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 Senator Durbin’s other main concern.
A simpler bill passed the House of Representatives last year that is similar to the amendment I tried to offer and Senator Durbin objected to.
It would simply stop the VA from referring veterans to the gun ban list without first finding them a danger to self or 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 everyone else, and I am sympathetic to that argument.
But, the bipartisan legislation I am introducing today was 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.
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.
And that’s the core of this bill.
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 non-veterans.
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 mental 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 a veteran is dangerous before taking away his or her firearms.
That’s the same standard our veterans must live by currently in order to remove their names from the gun ban list and get their guns back.
If We the People have to live under that standard, then so should the federal government.
I yield the floor.