Correcting VA’s Violations of Veterans’ Due Process and Second Amendment Rights

House Judiciary Bill MarkupsHouse Veterans' Affairs Subcommittee on Disability Assistance and Memorial Affairs · January 23, 2025 · 119th Congress
The House Veterans' Affairs Subcommittee on Disability Assistance and Memorial Affairs held this hearing to examine VA's practice of reporting veterans assigned a financial fiduciary to the FBI's National Instant Criminal Background Check System (NICS), stripping their Second Amendment rights without a judicial finding of dangerousness. Begins at ▶ 0:05:58
Transcript
Highlights

Title

VA fiduciary reporting to NICS and veterans' due process rights

Purpose

The House Veterans' Affairs Subcommittee on Disability Assistance and Memorial Affairs held this hearing to examine VA's practice of reporting veterans assigned a financial fiduciary to the FBI's National Instant Criminal Background Check System (NICS), stripping their Second Amendment rights without a judicial finding of dangerousness. Chairman Luttrell said over 250,000 veterans have been affected this way over two decades▶ 0:07:28, while Ranking Member McGarvey framed the issue against veteran suicide statistics and argued for balancing due process with safety. Witnesses from CRS, the Military Order of the Purple Heart, Vietnam Veterans of America, Everytown, and the VFW testified on the legal process and proposed reforms. Begins at▶ 0:05:58

Who spoke

• Chairman Morgan Luttrell (R-TX)▶ 0:05:58: Opened by stating VA has reported over 250,000 fiduciary-assigned veterans to NICS without a judicial or medical finding of dangerousness▶ 0:07:28, and framed the hearing as about due process, not gun policy▶ 0:10:00; later questioned Dr. Cohen on constitutional justification▶ 0:44:58.

• Ranking Member Morgan McGarvey (D-KY)▶ 0:10:30: Cited that 73% of veteran suicides involve firearms and male veterans are 41% more likely to use a firearm in suicide attempts▶ 0:12:01; walked through the multi-step DBQ/fiduciary/appeals process▶ 0:14:33 and noted no veteran has had an existing firearm confiscated solely for this reason▶ 0:51:33.

• Dr. Jordan B. Cohen, CRS Analyst in Firearms Policy [0:20:36 / opening 0:21:06]: Explained NICS reporting under 18 U.S.C. 922(g) and the "adjudicated as a mental defective" category requiring no judicial order▶ 0:22:36; said 4,893 fiduciary-related NICS reports occurred, 97.8% submitted by VA▶ 0:24:15, and that a FY2024 appropriations rider blocking such reporting expires March 14, 2025▶ 0:25:16.

• Dr. Scott D. Szymendera, CRS Analyst in Disability Policy▶ 0:58:37: Testified that dangerousness is only assessed if a veteran files a petition for relief, which fewer than 100 veterans do annually▶ 0:58:37▶ 0:59:37.

• Mr. James McCormick, Past National Commander, Military Order of the Purple Heart [0:25:47 / opening 0:26:17]: Argued the process violates First, Second, Fourth, Fifth, and Fourteenth Amendment protections▶ 0:27:48; said his own contact's son was denied a police job and firearm purchase without warning▶ 0:49:01, and stated veterans do not receive due process before NICS reporting▶ 0:59:37.

• Dr. Wayne Reynolds, National Treasurer, Vietnam Veterans of America [0:29:49 / opening 0:30:20]: A 78-year-old Vietnam combat medic, argued financial incompetency findings wrongly imply dangerousness and disproportionately burden lower-income veterans▶ 0:32:21; said poverty does not statistically correlate with violence▶ 0:33:22.

• Ms. Nancy Springer, Associate Director, VFW National Legislative Service [0:35:24 / opening 0:35:54]: Recommended a second medical exam, two-person field examiner teams, ending virtual interviews, clearer letters, and judicial review before NICS referral▶ 0:36:24; cited that of 135 FY22 incompetency hearings, 24 resulted in incompetency findings, and none of 33 relief petitions were granted▶ 0:38:55.

• Master Sergeant Michael "Top" Washington, USMC (ret.), Everytown Veterans Advisory Council [0:39:56 / opening 0:40:26]: Described his son's 2008 combat death and his own suicidal crisis on a bridge, from which he stepped back▶ 0:41:57; said over 6,400 veterans died by suicide in 2022, 73% involving firearms▶ 0:42:27, and warned that blocking VA's NICS reporting since last March leaves a growing group of at-risk veterans unmonitored▶ 0:43:27.

• Rep. Nancy Mace (R-SC)▶ 0:56:05: Said VA's "mentally incompetent" designation is really about financial management, not mental health▶ 0:56:35; asked whether MST survivors avoid VA care for fear of losing rights▶ 0:57:36.

• Rep. Kelly Morrison (D-MN)▶ 0:14:47: A physician married to an Army veteran, asked each witness for the single biggest step Congress could take to reduce veteran suicide▶ 0:14:47, and later noted results were mixed among the panel's answers.

• Rep. Derrick Van Orden (R-WI)▶ 0:19:50: Disclosed losing 21 friends, all Navy SEALs, to suicide▶ 0:19:50; argued rights are God-given and immutable and criticized treating medical records as objective fact▶ 0:20:50.

• Rep. Eli Crane (R-AZ)▶ 1:09:14: Argued the hearing is about whether "unelected bureaucrats" can strip Second Amendment rights over financial help needs▶ 1:09:14; confirmed with witnesses that VA need not show dangerousness, that having a fiduciary alone doesn't mean incompetence, and that no data links fiduciary status to violence risk▶ 1:11:15; cited his bill H.R. 496 to stop the practice and restore rights▶ 1:13:17.

• Rep. (unidentified, "Mr. Self")▶ 1:04:40: Questioned whether other groups of Americans face this same low bar without judicial/medical review, and whether the Supreme Court has ever ruled on the issue▶ 1:05:10.

• Rep. Jack Bergman (R-MI)▶ 1:24:23: Noted he is one of three remaining Vietnam veterans in Congress▶ 1:24:53 and urged the committee to hold VA accountable to higher standards▶ 1:26:24.

• Chairman Luttrell (closing)▶ 1:27:24: Thanked witnesses, entered an Everytown for Gun Safety letter into the record by unanimous consent▶ 1:27:24, and closed pledging the committee would pursue legislation.

• Ranking Member McGarvey (closing)▶ 1:28:25: Reiterated that pre-existing gun laws (1968 Gun Control Act, Brady Act) have not been found unconstitutional▶ 1:28:55, and that the study group of incompetency-plus-disability-benefit veterans shows higher suicide risk▶ 1:29:56.

Key moments

• Chairman Luttrell stated over 250,000 veterans with fiduciaries have been reported to NICS without any judicial ruling or medical finding of dangerousness▶ 0:07:28▶ 0:08:29.

• McGarvey cited a 2018 Swanson study finding veterans with a fiduciary are at "significantly higher risk of suicide" than other veterans, and noted 17 veterans die by suicide daily▶ 0:13:32▶ 0:14:03.

• Dr. Cohen testified 4,893 NICS reports were fiduciary-related as of end of 2023, with 97.8% submitted by VA▶ 0:24:15, and that the appropriations rider blocking such reporting expires March 14, 2025▶ 0:25:16.

• Springer's data: of 135 FY22 incompetency hearings only 24 upheld incompetency, and of 33 petitions for relief of firearm prohibitions, VA granted none directly, though 11 veterans were separately found competent and removed from NICS▶ 0:38:55.

• Washington described being talked back from jumping off a bridge by his deceased son's voice, and warned that had he had easy firearm access at that moment he "would never have had that chance"▶ 0:41:57▶ 0:42:27.

• McGarvey stated the subcommittee has found "not a single instance" of a veteran having an existing firearm confiscated because of this process▶ 0:51:33.

• Crane elicited from witnesses that VA need not prove dangerousness before NICS reporting, that fiduciary status alone doesn't mean incompetence, and that no data links fiduciary status to homicide/suicide risk▶ 1:11:15, then cited his bill H.R. 496 to end the practice and restore rights▶ 1:13:17.

• Van Orden disclosed losing 21 Navy SEAL friends to suicide and argued medical records are inherently "subjective," not the "immutable" basis needed to strip constitutional rights▶ 1:19:50▶ 1:22:21.

• McGarvey and Cohen agreed the Kennedy Amendment (temporary funding rider) does not repeal the underlying 1968 Gun Control Act or Brady Act, meaning affected veterans still could not legally buy a new firearm even if NICS reporting stops▶ 0:54:05▶ 1:28:55.

• McCormick said his family's contact was denied a police job and firearm purchase with no prior warning of the fiduciary process's consequences▶ 0:49:01, and stated the process "100% erodes trust" in VA▶ 1:00:07.

Metadata

CommitteeHouse Veterans' Affairs Subcommittee on Disability Assistance and Memorial Affairs
Chamber / CongressHouse · 119th Congress
DateJanuary 23, 2025
TypeHearing
Witnesses
Dr. Jordan B. Cohen — Analyst in Firearms Policy, Congressional Research Service
Dr. Scott D. Szymendera — Analyst in Disability Policy, Congressional Research Service
Mr. James McCormick — Past National Commander, Military Order of the Purple Heart
Dr. Wayne Reynolds — National Treasurer, Vietnam Veterans of America
Michael "Top" Washington — Master Sergeant, U.S. Marine Corps (retired), Everytown Veterans Advisory Council
Ms. Nancy Springer — Associate Director, National Legislative Service, Veterans of Foreign Wars of the United States
Videoyoutube
Transcript173 caption blocks · 13,817 words · 1:32:25 runtime
EventCongress.gov 117839