Buckeye Reporter

In March, an appropriations rider corrected a longstanding practice by the Department of Veterans Affairs (VA) of reporting beneficiaries to the National Instant Criminal Background Check System (NICS) as “mental defectives” prohibited from having guns, merely because they had been determined to need financial oversight. President Biden signed that provision into law, causing discontent among his anti-gun supporters who launched a campaign leveraging stereotypes about the beneficiaries and misrepresented the law. Consequently, the VA stopped its reporting, prompting demands from anti-gun advocates for alternative measures to restrict gun ownership among its beneficiaries.

A new military appropriations bill is now approaching President Biden’s desk. This time, he has indicated he will veto the package because it continues to protect veterans’ Second Amendment rights. Pro-gun members of Congress have responded by strengthening these protections in the current version of the bill.

The pending bill is HR 8580, the Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2025. It aims to provide essential funding for America’s Armed Forces and administer healthcare and benefits for veterans and their families. The bill includes language requiring due process and relevant findings by a neutral judge before the VA can report a beneficiary to NICS and impose a lifetime ban on firearm possession.

Section 261 of the pending bill states: "None of the funds made available by this Act may be used by the Secretary of Veterans Affairs under section 5502 of title 38, United States Code, in any case arising out of the administration by the Secretary of laws and benefits under such title, to report a person who is deemed mentally incapacitated, mentally incompetent, or to be experiencing an extended loss of consciousness as a person who has been adjudicated as a mental defective under subjection (d)(4) or (g)(4) of section 922 of title 18, United States Code, without the order or finding a judge, magistrate, or other judicial authority of competent jurisdiction that such person is a danger to himself or herself or others."

Proponents claim these individuals are dangerous with guns; however, they must prove this to a neutral judicial authority rather than relying on bureaucratic practices.

The Biden administration previously supported this premise during an oral argument before the U.S. Supreme Court concerning whether banning those convicted of misdemeanors involving domestic violence violates the Second Amendment. Justice Clarence Thomas questioned if administrative determinations hold equal weight under the Second Amendment compared to judicial findings. The government's lawyer responded that executive branch determinations would be more challenging to defend due to principles guarding against granting excessive discretion to executive officials regarding firearm ownership.

The VA remains unique among federal entities in using fiduciary assignments within benefits programs as grounds for reporting beneficiaries to NICS. This practice has not been validated by any federal appellate court as consistent with underlying statutes. A similar effort during the Obama/Biden administration was criticized across political lines and halted by Congress.

Despite protective language in spending bills, gun prohibitionists persist in efforts targeting veterans' constitutional rights. Numerous anti-gun members urged an automatic process for seeking judicial orders for veterans deemed mentally incompetent by the VA.

In response, pro-gun House members strengthened protections in HR 8580 through an amendment led by Rep. Eli Crane (R-AZ), which passed with bipartisan support. Crane's provision prevents VA fiduciary assignments from being used as grounds for NICS reporting under any circumstance.

Biden’s policy statement on HR 8580 criticized Section 261 despite his previous approval when signing earlier legislation into law. Rep. Crane’s amendment may further challenge White House support for military appropriations legislation.

Time will reveal whether Biden prioritizes anti-gun politics over previous policy decisions at potential expense to America's service members.

___