H.R.1181 – Veterans 2nd Amendment Protection Act

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Week ending March 17, 2017

H.R.1181 – Veterans 2nd Amendment Protection Act

Brief

The bill aims to clarify the conditions under which certain persons may be treated as adjudicated mentally incompetent for the purpose of owning a firearm.

More specifically the bill states it aims ‘to protect a veteran’s second amendment rights by prohibiting the Secretary from sending the name of the individual to the FBI for inclusion on the National Instant Criminal Background Check System, unless there has been a specific determination by a judge, magistrate, or other judicial authority that such individual is a danger to himself or others.’

(Dissenting views)

(Full text of H.R. 1181 at congress.gov)

Sponsor:  Rep. Roe, David P. [R-TN-1] (Introduced 02/16/2017)

Status: Passed House /

VOTES and FLOOR ACTION

HOUSE

On Passage: On passage Passed by the Yeas and Nays: 240 – 175 (Roll no. 169)

House Amendments:

Motion to recommit:

Text of the motion:

SENATE

On Passage:

Procedural Actions:

Senate Amendments:

COST AND IMPACT

Cost to the taxpayersCBO expects that

implementing H.R. 1181 would have no significant budgetary effect.

Pay-as-you-go requirements:  Enacting H.R. 1181 would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply.

Regulatory and Other Impact:    H.R. 1181 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.

Dynamic Scoring:   Data not available

Tax Complexity:  Not applicable to this bill.

Earmark Certification:  H.R. 1181 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.

Duplication of 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. 1181 establishes or reauthorizes a program of the Federal Government known to be duplicative of another Federal program

Direct Rule-Making:  the Committee estimates that H.R. 1181 contains no directed rule making that would require the Secretary to prescribe regulations

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.1181.

Budget Authority: Data not available

Constitutional Authority:   Assumed.

More Bill Information:

DISSENTING VIEWS

 

We have serious concerns over H.R. 1181. We believe this legislation, in practice, would instantly remove all individuals previously determined to be mentally incompetent by the Department of Veterans Affairs (VA) Secretary from the National Instant Criminal Background Check System (NICS), making it easier, not harder, for those veterans in crisis to obtain firearms. Many of those who will be removed from the NICS database include veterans with serious mental illnesses and who are at increased risk of committing suicide by firearm.\1\ Additionally, the bill seeks to jettison the carefully crafted bipartisan compromise in the 21st Century Cures Act\2\ enacted in December 2016 that codified VA implementation of the bipartisan NICS Improvement Amendments Act of 2007 (NIAA).\3\ Instead, H.R. 1181 would require the VA to take a veteran to court to get a determination under a standard that would be in effect nearly impossible to meet.

Just last December, in the wake of tragic shootings at Virginia Polytechnic Institute and State University (Virginia Tech) in Blacksburg, Virginia in 2007, Sandy Hook Elementary School in Newtown, Connecticut in April 2013, and mass shootings in San Bernardino, CA in December 2015 and Orlando, FL in June 2016, Congress passed the 21st Century Cures Act, which carefully refined, in a bipartisan and bicameral effort, legislation to prevent veterans who pose a danger to themselves and others from obtaining firearms. The 21st Century Cures Act established a fair process to ensure due process for veterans deemed “mentally incompetent” by the VA and appointed a fiduciary. It allows veterans to present evidence from a mental health professional and be represented by counsel at incompetency hearings.\8\

 

Just three months after the passage of the 21st Century Cures Act, H.R. 1181 would yet again change the standard by requiring the VA to obtain a court determination that the veteran is a danger to self or others before the VA could provide the name of the veteran to the NICS.

The language in H.R. 1181(a) states:

 

“[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 17(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.”\9\

 

This appears to apply both prospectively and retroactively, as the VA Secretary’s previous adjudication of a veteran’s mental incompetence in compliance with the NICS Improvement Amendments Act of 2007\10\ would no longer apply. This would immediately remove over 174,000 records, allowing easy access to firearms for many individuals in crisis and suffering from serious mental illnesses like dementia, schizophrenia, and long-term severe post-traumatic stress disorder (PTSD).

 

With enactment of the bipartisan 21st Century Cures Act, the VA may not make a determination on the mental capacity of a veteran unless the veteran is provided:

“(1) Notice of the proposed adverse determination

and the supporting evidence.

(2) An opportunity to request a hearing.

(3) An opportunity to present evidence, including an

opinion from a medical professional or other person, on

the capacity of the beneficiary to manage monetary

benefits paid to or for the beneficiary by the

Secretary under this title.

(4) An opportunity to be represented at no expense to

the Government (including by counsel) at any such

hearing and to bring a medical professional or other

person to provide relevant testimony at any such

hearing.”\11\

 

This requirement ensures veterans with a mental condition that may require appointment of a fiduciary are given a fair process before that determination is made, and before their names are sent to NICS. Additionally, this process does not remove a veteran’s ability to appeal the VA’s referral of his or her name to NICS, even after being appointed a fiduciary.

The issue of veterans’ suicide is too important to rush through this bill without a hearing or proper time to consider its full implications. We agree that the current practice of information sharing between the VA and NICS may be over inclusive and that alternatives should be explored that would more appropriately balance veterans’ Second Amendment rights with ensuring that veterans who pose a danger to themselves or to others do not have access to firearms. However, this bill is not the solution. This bill was not considered through regular order and was rushed to a full committee markup. This gave us only 48 hours to review the legislation. This bill has not received a legislative hearing and has not been marked up in Subcommittee. No discussion, research, or investigation has occurred on the issue subsequent to passage of the 21st Century Cures Act.

This is why we supported an amendment during the full Committee markup that we believe would have given us an opportunity to better study the impact of the 21st Century Cures Act and the VA’s existing practices for submitting records of veterans to NICS. The Government Accountability Office would conduct a study to give us better data and information to craft legislation that achieves both goals of protecting veterans in crisis and protecting veterans’ Second Amendment rights.

 

Elizabeth H. Esty.

Scott H. Peters.

Mark Takano.

Julia Brownley.

Kathleen M. Rice.

Ann M. Kuster

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