Veterans are still fearful of harmful gun rights policies if they seek mental health care for PTSD after serving in combat to defend the rights of all Americans.
Breitbart picked up on the growing concern of veterans considering treatment for post-traumatic stress disorder. Over the past few years, the Department of Veterans Affairs has assumed the power to restrict a veteran’s right to own firearms if they are deemed unable to manage their finances. VA apparently correlates financial incompetence with restricting the 2nd Amendment rights of disabled veterans.
Veterans are not alone. The Social Security Administration has a similar program for disabled Americans who are financially incompetent. The problematic element of the process is that the American is deemed financially incompetent and presumed unable to safely manage a firearm without a trial.
GUN RIGHTS AND INCOMPETENCE
Confusing the issue is that financial incompetence is not the same as being legally incompetent. An “incompetent” person should not sign agreements to purchase things or enter into contracts without adequate representation. There is a legal process a family must follow in order to deem someone legally incompetent that includes a court hearing with evidence. That is the usual process for most Americans.
However, for disabled veterans, VA is able to serve as the judge, jury and executioner all in one. This relationship has many veterans avoiding valuable mental healthcare due a reasonable fear they will have their rights restricted.
One issue I find concerning is the lack of an evidentiary basis showing people deemed financially incompetent are unable to safely handle a firearm. How are some of these standards defined or documented?
To help readers attack the issues, I wanted to post at least a couple legal articles about the troubled fiduciary program and its flawed approach to revoke constitutional rights of disabled veterans.
LEGAL ARTICLE ON VA FIDUCIARY POLICY
One legal note published in Hastings Constitutional Law Quarterly had this to say about the process:
“The process by which the VA adds veterans to the gun ban list is highly unusual and illegal for one simple reason: the VA overreports veterans to the list. Once it determines that a veteran requires a fiduciary to administer benefit payments, the VA automatically reports that veteran to the gun ban list, consequently denying his or her right to possess and own firearms. The VA attempts to justify its actions by relying on a single federal regulation, 38 C.F.R. § 3.353, which grants limited authority to determine incompetence in the context of financial incompetence—i.e., whether or not the veteran can adequately administer benefit payments. The regulation’s core purpose is limited to appointing a fiduciary for financial purposes and is not designed to deny the right to possess or own firearms. Yet, the VA irrationally assumes that a veteran who cannot properly manage VA payments is a danger to public safety and is incapable of adequately managing a firearm, thereby justifying adding the veteran’s name to the gun ban list. Not only is the VA intentionally misinterpreting and misapplying existing federal firearm restrictions, it is unconstitutionally applying these federal laws to veterans merely because they cannot manage VA benefits. Thus, without proper legal authority and without affording due process of law, the VA subjects veterans to a broad sweeping firearm ban. Throughout Supreme Court jurisprudence there does not exist a case on point that allows firearm restrictions to be employed based upon a financial incompetence standard. Furthermore, in the aftermath of the Supreme Court holding that the Second Amendment is a fundamental right, the constitutionality of the VA’s conduct is suspect and worthy of analysis.”
If you are researching the subject, you can start by reading through legal articles on the subject to help you understand the errors within the assumption of authority. Below is another article from a legal journal at Duke Law that addresses the program from different angle.
AMERICAN LEGION ON GUN RIGHTS
The American Legion has spoken against the push to erode rights of veterans without additional processes to ensure constitutional rights are protected and only taken away following due process. About tighter gun controls, Legion National Commander Dale Barnett said:
“The American Legion strongly believes that treatment for PTSD or depression by itself, which a number of wartime veterans experience, should not be the sole factor in denying a veteran the right to purchase a firearm.”
“Barring some additional circumstances that would indicate that a veteran represents a dangerous threat, veterans should not have to forfeit their Second Amendment rights. Veterans have fought to protect the constitutional rights of all Americans. The American Legion believes that the rights of these heroes deserve protection.”
The move to suppress rights guaranteed and protected by the same people who later lose those rights after protecting the country certainly seems like a questionable move. I am glad to see at least one veteran organization taking a stand on the subject.
Perhaps our country could do better by at least presenting the case before a judge? Should financially incompetent veterans lose their rights like felons? Why is it that our country provides greater protections for the rights of criminals than disabled veterans? When will Congress lose their right to buy firearms?