[House Report 113-159]
[From the U.S. Government Publishing Office]
113th Congress } { Report
1st Session } HOUSE OF REPRESENTATIVES { 113-159
=======================================================================
VETERANS 2ND AMENDMENT PROTECTION ACT
_______
July 19, 2013.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Miller of Florida, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
[To accompany H.R. 602]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 602) 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, report favorably thereon
without amendment and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 4
Subcommittee Consideration....................................... 5
Committee Consideration.......................................... 5
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 5
Statement of General Performance Goals and Objectives............ 5
New Budget Authority, Entitlement Authority, and Tax Expenditures 5
Earmarks and Tax and Tariff Benefits............................. 5
Committee Cost Estimate.......................................... 6
Congressional Budget Office Estimate............................. 6
Federal Mandates Statement....................................... 7
Advisory Committee Statement..................................... 7
Statement of Constitutional Authority............................ 7
Applicability to Legislative Branch.............................. 7
Statement on Duplication of Federal Programs..................... 7
Disclosure of Directed Rulemaking................................ 7
Section-by-Section Analysis of the Legislation................... 7
Changes in Existing Law Made by the Bill, as Reported............ 8
Purpose and Summary
H.R. 602 was introduced on February 8, 2013, by
Representative Jeff Miller of Florida. H.R. 602 would amend
title 38 to require an order or a finding of a judge,
magistrate, or other judicial authority that a person assigned
a fiduciary is a danger to himself, herself or others before
such a person is adjudicated as a mental defective under
Section 922 of title 18, United States Code.
Background and Need for Legislation
Section 1. Short title
The Veterans 2nd Amendment Protection Act
Section 2. Conditions for treatment of certain persons as adjudicated
mentally incompetent for certain purposes
Section 2 of H.R 602 addresses an inequitable penalty that
is applied under the guise of federal law solely, and
disparately, to veterans who are appointed fiduciaries for
management of financial affairs. Specifically, federal laws as
relate to the acquiring, possessing, and transporting of
firearms have evolved in recent decades, and an improper effect
has resulted exclusively to the nation's veterans.
Over 40 years ago, the Federal Gun Control Act of 1968
(GCA), Public Law 90-618, 82 Stat. 1213, 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 a mental
institution.'' (Ibid., 82 Stat. 1213, 1220). Part 478.11 of
title 27, Code of Federal Regulations, defines ``adjudicated as
a mental defective'' as:
(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.
38 C.F.R. Sec. 3.353(a) defines ``mental incompetency.'' A
mentally incompetent person is one 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.
Twenty-five years later, the Brady Handgun Violence
Prevention Act of 1993 (Brady Act), Public Law 103-159, 107
Stat. 1536, required the Attorney General to establish a system
to assist federally licensed gun dealers in determining whether
a gun buyer is prohibited under the GCA from purchasing a
firearm. The system developed pursuant to the Brady Act, the
National Instant Criminal Background Check System (NICS), is a
computerized database operated by the Federal Bureau of
Investigation (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 required 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 on 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 as determined under 38
C.F.R. Sec. 3.353. Once a determination of incompetency is made
under part 3.353, VA appoints a fiduciary for the beneficiary.
The evidence gathered to support a finding of incompetency,
under 38 C.F.R. Sec. 3.353, is used to inform a judgment about
whether a beneficiary has the capacity ``to contract or to
manage his or her own affairs, including disbursement of funds
without limitation.'' There is no current requirement to gather
evidence or information regarding whether a beneficiary
presents a danger to themselves or others, or whether they
should be prohibited from purchasing, possessing, or operating
a firearm. Furthermore, although beneficiaries are entitled to
a hearing once notified that a fiduciary will be appointed for
them, the initial hearing is before VA personnel, not an
independent authority.
From the date of the initial 1998 request of the Attorney
General, through April, 2013, VA has shared information with
NICS on over 143,000 individuals for whom it has appointed a
fiduciary. Despite the fact that other agencies, such as the
Social Security Administration (SSA), appoint fiduciaries to
manage benefit payments for their beneficiaries in a manner
similar to VA's process, a similar reporting to NICS does not
occur. VA beneficiaries constitute the overwhelming majority of
individuals referred to the FBI by the Federal Government.
The purpose of the VA fiduciary program is to protect
veterans who are unable to manage their VA benefits. It is a
system designed to assist veterans who are determined unable to
manage their finances. Ultimately, the government appoints a
third party to assist the veteran beneficiary in financial
matters.
The Social Security Administration provides a comparison
with its ``representative payee'' program. According to the
Social Security Administration, each legally incompetent adult
must be appointed a ``representative payee,'' or fiduciary, who
is responsible for using the beneficiary's benefits to pay for
the current and foreseeable needs of the beneficiary and to
properly save any benefits not needed to meet current needs.
Again, the government appoints a third party to assist the
beneficiary in financial matters.
However, there is a difference in effect of the fiduciary
program as applied to a veteran beneficiary as opposed to a
Social Security beneficiary; the veteran beneficiary, who
served this nation honorably and who is receiving benefits
earned, is referred to the Federal Bureau of Investigation and
is placed on the NICS list; the Social Security beneficiary is
not placed on the NICS list.
H.R. 602 is intended to remedy this disparate treatment and
to ensure that there is a specific determination that a veteran
is a ``danger to himself or herself or others'' by a ``judge,
magistrate, or other judicial authority of competent
jurisdiction'' before the veteran is determined to have been
``adjudicated as a mental defective'' under the operation of
section 922 of title 38, United States Code.
The Committee believes that a determination that a veteran
cannot handle financial affairs is not a determination that
they are a danger to themselves or to the public and hence
should be prohibited from purchasing or possessing firearms.
Since such a determination implicates a specific right granted
under the Constitution, the Committee believes that a specific
determination is required.
VA has noted that, under the NICS Improvement Amendments
Act of 2007, individuals whom VA has determined to be
incompetent can have their firearms rights restored in two
ways. VA first notes that a veteran 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.
However, a veteran may very well need assistance with finances
and it may be in the veteran's best interest to maintain a
fiduciary for that purpose.
Again, the Committee finds that a determination of
incompetency regarding financial matters is not a finding of
incompetence in all aspects of a veterans' life, although this
is the manner in which current law and regulations operate. The
Committee believes that this approach is overly broad and not
narrowly tailored to address specific concerns that would merit
a denial of rights accorded under the Constitution.
Next, VA states that even if a veteran 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. This is also an unacceptable remedy
for several reasons. First, this appellate hearing is held
before VA personnel and not before an independent authority.
Second, the practical implication of this structure is the
immediate abridgement of a veteran's constitutional right;
then, the veteran is forced to appeal a matter that was never
decided in the first instance, namely whether the veteran is a
threat to public or personal safety. As of April, 2013, with
over 143,000 subject veterans, VA has granted only seven
requests for relief from NICS reporting. This can hardly be
advertised as an effective means to safeguard veterans'
constitutional rights.
H.R. 602 prohibits disparate treatment of veterans by
requiring a standard used elsewhere in the Federal government,
such as the fiduciary program conducted by the Social Security
Administration.
Hearings
On April 16, 2013, the Subcommittee on Disability
Assistance and Memorial Affairs conducted a legislative hearing
on various bills introduced during the 113th Congress,
including H.R. 602. The following witnesses testified at the
hearing:
The Honorable Bill Johnson, U.S. House of Representatives;
The Honorable Chellie Pingree, U.S. House of Representatives;
The Honorable Timothy Walz, U.S. House of Representatives; Mr.
Jeff Hall, Assistant National Legislative Director, Disabled
American Veterans; Mr. Raymond Kelley, Director of National
Legislative Service, Veterans of Foreign Wars; Colonel Robert
F. Norton, USA (Ret.), Deputy Director of Government Relations,
Military Officers Association of America; Heather Ansley, Esq.,
MSW, Vice President of Veterans Policy, VetsFirst, a program of
United Spinal Association; Mr. Michael D. Murphy, Executive
Director, National Association of County Veterans Service
Officers; Mr. Richard Hipolit, Assistant General Counsel, U.S.
Department of Veterans Affairs; Mr. David R. McLenachen,
Director, Pension and Fiduciary Service, U.S. Department of
Veterans Affairs, accompanied by Ms. Mary Ann Flynn, Deputy
Director, Policy and Procedures, Compensation Service, U.S.
Department of Veterans Affairs. The following groups submitted
statements for the record: The American Legion; Iraq and
Afghanistan Veterans of America; National Organization of
Veterans Advocates; and Wounded Warrior Project.
Subcommittee Consideration
The Subcommittee on Disability Assistance and Memorial
Affairs did not consider H.R. 602 in an open markup session.
Committee Consideration
On May 8, 2013, the full Committee met in an open markup
session, a quorum being present, and ordered H.R. 602 reported
favorably to the House of Representatives, by voice vote.
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. There were no recorded votes taken on amendments or in
connection with ordering H.R 602 reported to the full House. A
motion by Representative Doug Lamborn of Colorado to order H.R.
602 reported favorably to the full House was agreed to by voice
vote.
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 are reflected in the descriptive portions
of this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee adopts as its
own the estimate of new budget authority, entitlement
authority, or tax expenditures or revenues contained in the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974.
Earmarks and Tax and Tariff Benefits
H.R. 602 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 cost estimate on H.R.
602 prepared by the Director of the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of
1974.
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. 602 provided by the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of
1974.
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 13, 2013.
Hon. Jeff Miller,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 602, the Veterans
2nd 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.
Enclosure.
H.R. 602--Veterans 2nd Amendment Protection Act
H.R. 602 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 H.R. 602 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 H.R. 602, 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 H.R. 602 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
H.R. 602 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.
The CBO staff contact for this estimate is Dwayne M.
Wright. The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates regarding H.R. 602 prepared by the Director of the
Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act.
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.
602.
Statement of Constitutional Authority
Pursuant to Article I, section 8 of the United States
Constitution, the reported bill is authorized by Congress'
power to ``provide for the common Defense and general Welfare
of the United States.''
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Statement on Duplication of Federal Programs
Pursuant to section 3(j) of H. Res. 5, 113th Cong. (2013),
the Committee finds that no provision of H.R.602, the
``Veterans 2nd Amendment Protection Act,'' establishes or
reauthorizes 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.
Disclosure of Directed Rulemaking
Pursuant to section 3(k) of H. Res. 5, 113th Cong. (2013),
the Committee estimates that H.R. 602 does not require any
directed rule makings.
Section-by-Section Analysis of the Legislation
Section 1. Short title
This section provides the short title of H.R. 602 as the
``Veterans 2nd Amendment Protection Act.''
Section 2. Conditions for treatment of certain persons as adjudicated
mentally incompetent for certain purposes
Section 2(a) would provide that, in any case arising out of
the administration by the Secretary of laws and benefits under
title 38, a person who is mentally incapacitated, deemed
mentally incompetent, or experiencing an extended loss of
consciousness shall not be considered adjudicated as a mental
defective under subsection (d)(4) or (g)(4) of section 922 of
title 18, as pertain to acquiring, possessing, or transporting
a firearm or ammunition, without the order or finding of a
judge, magistrate, or other judicial authority of competent
jurisdiction that such person is a danger to himself or herself
or others.
Section 2(b) would make a clerical amendment to the table
of sections at the beginning of Chapter 55 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 (new matter is
printed in italic 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.
* * * * * * *
5511. Conditions for treatment of certain persons as adjudicated
mentally incompetent for certain purposes.
* * * * * * *
Sec. 5511. Conditions for treatment of certain persons as adjudicated
mentally incompetent for certain purposes
In any case arising out of the administration by the
Secretary of laws and benefits under this title, a person who
is mentally incapacitated, deemed mentally incompetent, or
experiencing an extended loss of consciousness shall not be
considered adjudicated as a mental defective under subsection
(d)(4) or (g)(4) of section 922 of title 18 without the order
or finding of a judge, magistrate, or other judicial authority
of competent jurisdiction that such person is a danger to
himself or herself or others.
* * * * * * *