Second Amendment advocates are pushing Congress to pass legislation that would protect gun rights for veterans accused of being mentally incompetent by the Department of Veterans Affairs.
Under current law, veterans seeking mental health treatment or assistance managing their finances by tapping into their benefits are often appointed a fiduciary by the VA, flagged as mentally incompetent, and reported to the FBI’s National Instant Criminal Background Check System. In turn, the FBI can prohibit them from owning a gun, a policy critics say places the label of mentally incompetent on veterans without a court order proving the claim and strips away Second Amendment freedoms without the constitutional right to due process.
Between 2018 and 2021, the VA added over 103,000 veterans to the NICS adjudicated mental health category. Senate Judiciary Committee Chairman Chuck Grassley (R-IA) sent the VA a letter this week calling on the agency to release more details surrounding the NICS referrals, expressing concern that the bureaucracy has not been transparent with such information.
During an interview with the Washington Examiner, Mission Roll Call CEO Jim Whaley called on Congress to end the policy by passing legislation proposed by Sens. Jerry Moran (R-KS) and John Kennedy (R-LA) and Rep. Mike Bost (R-IL). The Veterans Second Amendment Protection Act requires a judicial court decision prior to NICS referral. Doing so guarantees the right to due process before prohibiting veterans from owing a firearm, lawmakers say.
Whaley, a 20-year Army veteran whose nonprofit group boasts around 1.6 million veteran members, highlighted a Mission Roll Call survey of veterans nationwide that found 83% support Congress changing the law to “protect veterans’ due process rights.”
“When somebody is seeking mental health care or for whatever reason, their finances are under somebody else controlling a fiduciary. They’re automatically enrolled into this program that the FBI has [the NICS],” he said. “The result is that they’re designated as mentally incompetent at that point, based solely on an administrative function, and so that leads to revocation of their Second Amendment rights.”
“That’s just wrong on so many levels. One is no judges involved with this, nobody making sure that it was done properly,” Whaley continued. “Why are we making it difficult, or putting a stigma to veterans getting mental health treatment? And that could be anything from, ‘Hey, I’ve had a bad dream. I’ve had some issues dealing with the situation.’ Doesn’t mean they’re suicidal, doesn’t mean they’re dangerous, but why would we make that stigma for them not to lose their Second Amendment rights?”
The House Committee on Veterans’ Affairs most recently held a hearing on the legislation in February, where Bost argued the bill “is not about guns on demand, [but] about giving veterans the same due process as every other American.”
Our veterans put their lives on the line to protect their freedoms. It should infuriate all of us when they have their freedoms taken away when they return home. Well, when the VA determines a veteran needs help managing their finances, that veteran’s personal information is… pic.twitter.com/VNZmQaem1o
— Rep. Mike Bost (@RepBost) February 7, 2025
Critics such as Gun Violence Prevention Task Force Chairman Rep. Mike Thompson (D-CA) say the policy, which originates from the 1993 Brady Handgun Violence Prevention Act, is a necessary safeguard to protect veterans who suffer from serious mental health issues from hurting themselves. The suicide rate for veterans is 1.5 times higher than that of the general population, according to the American Addiction Center, and guns are often used to carry out suicides.
“There are very serious reasons why a veteran is deemed mentally incompetent and is not able to purchase a firearm. Firearms were used in 68 percent of veterans’ death by suicide. So why on earth would this Congress cede one more important safeguard against a veteran’s death?” House Veterans’ Affairs Committee Ranking Member Mark Takano (D-CA) said when similar proposal came under congressional scrutiny last year.
Thompson similarly defended the VA’s policy of submitting information to the FBI’s NICS database, telling the Washington Examiner “veterans who are a danger to themselves or others should have their information submitted to our nation’s background check system as had been the case for many decades.”
“Legislation to undermine this is not only wrong-headed but also puts veterans’ lives and our communities at risk,” Thompson said in a statement.
Advocates for the legislation, including the National Rifle Association’s lobbying arm, say it’s still “blatantly unconstitutional” to deem a veteran mentally incompetent and bar them from possessing a weapon without an outside court order. Moran told the Washington Examiner that “no other fiduciary appointment process carries this penalty.”
Whaley argued many of the veterans flagged into NICS are simply seeking assistance managing their finances. Around 25% of active duty military have financial insecurity issues, he estimated. Many of them seeking assistance managing their finances to jump start a small business and start a new life once they get out of the military face the prospect that doing so will automatically trigger them into NICS and take away their ability to have a weapon.
“We certainly are not advocating that somebody that should not have a weapon have a weapon,” he said. “What we’re advocating for is that the same rights that every American enjoys, that there’s a due process and involves a judge to take away somebody’s legal rights is afforded to those individuals, people that served in the armed services, ones that have defended that constitutional right.”
Under the Trump administration, the VA has said they will not enforce the policy, Whaley said, although legislation is still needed to permamently change the rule so it does not take effect again in future administrations. He said recently spoke with VA Secretary Doug Collins on the matter.
“I believe he’s in full concurrence that this law is not a good one. It’s it’s not fair to veterans, and it never should have happened,” Whaley said.
VA press secretary Pete Kasperowicz confirmed in a statement to the Washington Examiner that Collins “strongly supports” the bill.
This isn’t the first Congress the Veterans Second Amendment Protection Act has been introduced. But advocates are hopeful that expanded Republican majorities will push the legislation through this year.
COLORADO PUSHES TOWARD A DE FACTO GUN REGISTRY
“With bicameral support, I am hopeful this legislation will be supported by my colleagues as it safeguards veterans’ rights from VA bureaucracy, rather than driving veterans away from the services they have earned,” Moran said.
Whaley added that on Capitol Hill, “there’s general optimism that common sense will prevail.”
