H. Rept. 113-159 - 113th Congress (2013-2014)
July 19, 2013, As Reported by the Veterans' Affairs Committee

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House Report 113-159 - VETERANS 2ND AMENDMENT PROTECTION ACT




[House Report 113-159]
[From the U.S. Government Printing Office]


113th Congress  }                                           {    Report
  1st Session   }        HOUSE OF REPRESENTATIVES           {   113-159

=======================================================================

 
                 VETERANS 2ND AMENDMENT PROTECTION ACT 

                                _______
                                

 July 19, 2013.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Miller of Florida, from the Committee on Veterans' Affairs, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 602]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Veterans' Affairs, to whom was referred 
the bill (H.R. 602) to amend title 38, United States Code, to 
clarify the conditions under which certain persons may be 
treated as adjudicated mentally incompetent for certain 
purposes, having considered the same, report favorably thereon 
without amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     4
Subcommittee Consideration.......................................     5
Committee Consideration..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................     5
Statement of General Performance Goals and Objectives............     5
New Budget Authority, Entitlement Authority, and Tax Expenditures     5
Earmarks and Tax and Tariff Benefits.............................     5
Committee Cost Estimate..........................................     6
Congressional Budget Office Estimate.............................     6
Federal Mandates Statement.......................................     7
Advisory Committee Statement.....................................     7
Statement of Constitutional Authority............................     7
Applicability to Legislative Branch..............................     7
Statement on Duplication of Federal Programs.....................     7
Disclosure of Directed Rulemaking................................     7
Section-by-Section Analysis of the Legislation...................     7
Changes in Existing Law Made by the Bill, as Reported............     8

                          Purpose and Summary

    H.R. 602 was introduced on February 8, 2013, by 
Representative Jeff Miller of Florida. H.R. 602 would amend 
title 38 to require an order or a finding of a judge, 
magistrate, or other judicial authority that a person assigned 
a fiduciary is a danger to himself, herself or others before 
such a person is adjudicated as a mental defective under 
Section 922 of title 18, United States Code.

                  Background and Need for Legislation


Section 1. Short title

    The Veterans 2nd Amendment Protection Act

Section 2. Conditions for treatment of certain persons as adjudicated 
        mentally incompetent for certain purposes

    Section 2 of H.R 602 addresses an inequitable penalty that 
is applied under the guise of federal law solely, and 
disparately, to veterans who are appointed fiduciaries for 
management of financial affairs. Specifically, federal laws as 
relate to the acquiring, possessing, and transporting of 
firearms have evolved in recent decades, and an improper effect 
has resulted exclusively to the nation's veterans.
    Over 40 years ago, the Federal Gun Control Act of 1968 
(GCA), Public Law 90-618, 82 Stat. 1213, and subsequent 
amendments, established categories of persons who are 
prohibited from receiving or possessing firearms. Included 
among the categories is any person who has been ``adjudicated 
as a mental defective or who has been committed to a mental 
institution.'' (Ibid., 82 Stat. 1213, 1220). Part 478.11 of 
title 27, Code of Federal Regulations, defines ``adjudicated as 
a mental defective'' as:
    (a) A determination by a court, board, commission, or other 
lawful authority that a person, as a result of marked subnormal 
intelligence, or mental illness, incompetency, condition, or 
disease:
          (1) Is a danger to himself or to others; or
          (2) Lacks the mental capacity to contract or manage 
        his own affairs.
    38 C.F.R. Sec. 3.353(a) defines ``mental incompetency.'' A 
mentally incompetent person is one who because of injury or 
disease lacks the mental capacity to contract or to manage his 
or her own affairs, including disbursement of funds without 
limitation.
    Twenty-five years later, the Brady Handgun Violence 
Prevention Act of 1993 (Brady Act), Public Law 103-159, 107 
Stat. 1536, required the Attorney General to establish a system 
to assist federally licensed gun dealers in determining whether 
a gun buyer is prohibited under the GCA from purchasing a 
firearm. The system developed pursuant to the Brady Act, the 
National Instant Criminal Background Check System (NICS), is a 
computerized database operated by the Federal Bureau of 
Investigation (FBI) NICS Section. The NICS can be queried by 
gun dealers to determine whether the name of a prospective 
buyer is on the list and, therefore, legally prohibited from 
purchasing a firearm.
    The Brady Act also required Federal agencies, upon the 
request of the Attorney General, to submit to the FBI 
information on persons prohibited from purchasing a firearm. 
The Attorney General made such a request to VA in 1998. Under a 
Memorandum of Understanding entered into between the FBI and 
VA, VA agreed to make available for inclusion on the NICS 
database information about VA beneficiaries who are determined 
to be mentally incompetent on account of their inability to 
contract or manage their own affairs as determined under 38 
C.F.R. Sec. 3.353. Once a determination of incompetency is made 
under part 3.353, VA appoints a fiduciary for the beneficiary.
    The evidence gathered to support a finding of incompetency, 
under 38 C.F.R. Sec. 3.353, is used to inform a judgment about 
whether a beneficiary has the capacity ``to contract or to 
manage his or her own affairs, including disbursement of funds 
without limitation.'' There is no current requirement to gather 
evidence or information regarding whether a beneficiary 
presents a danger to themselves or others, or whether they 
should be prohibited from purchasing, possessing, or operating 
a firearm. Furthermore, although beneficiaries are entitled to 
a hearing once notified that a fiduciary will be appointed for 
them, the initial hearing is before VA personnel, not an 
independent authority.
    From the date of the initial 1998 request of the Attorney 
General, through April, 2013, VA has shared information with 
NICS on over 143,000 individuals for whom it has appointed a 
fiduciary. Despite the fact that other agencies, such as the 
Social Security Administration (SSA), appoint fiduciaries to 
manage benefit payments for their beneficiaries in a manner 
similar to VA's process, a similar reporting to NICS does not 
occur. VA beneficiaries constitute the overwhelming majority of 
individuals referred to the FBI by the Federal Government.
    The purpose of the VA fiduciary program is to protect 
veterans who are unable to manage their VA benefits. It is a 
system designed to assist veterans who are determined unable to 
manage their finances. Ultimately, the government appoints a 
third party to assist the veteran beneficiary in financial 
matters.
    The Social Security Administration provides a comparison 
with its ``representative payee'' program. According to the 
Social Security Administration, each legally incompetent adult 
must be appointed a ``representative payee,'' or fiduciary, who 
is responsible for using the beneficiary's benefits to pay for 
the current and foreseeable needs of the beneficiary and to 
properly save any benefits not needed to meet current needs. 
Again, the government appoints a third party to assist the 
beneficiary in financial matters.
    However, there is a difference in effect of the fiduciary 
program as applied to a veteran beneficiary as opposed to a 
Social Security beneficiary; the veteran beneficiary, who 
served this nation honorably and who is receiving benefits 
earned, is referred to the Federal Bureau of Investigation and 
is placed on the NICS list; the Social Security beneficiary is 
not placed on the NICS list.
    H.R. 602 is intended to remedy this disparate treatment and 
to ensure that there is a specific determination that a veteran 
is a ``danger to himself or herself or others'' by a ``judge, 
magistrate, or other judicial authority of competent 
jurisdiction'' before the veteran is determined to have been 
``adjudicated as a mental defective'' under the operation of 
section 922 of title 38, United States Code.
    The Committee believes that a determination that a veteran 
cannot handle financial affairs is not a determination that 
they are a danger to themselves or to the public and hence 
should be prohibited from purchasing or possessing firearms. 
Since such a determination implicates a specific right granted 
under the Constitution, the Committee believes that a specific 
determination is required.
    VA has noted that, under the NICS Improvement Amendments 
Act of 2007, individuals whom VA has determined to be 
incompetent can have their firearms rights restored in two 
ways. VA first notes that a veteran who has been adjudicated by 
VA as unable to manage his or her own affairs can reopen the 
issue based on new evidence and have the determination 
reversed. When this occurs, VA is obligated to notify the 
Department of Justice to remove the individual's name from the 
roster of those barred from possessing and purchasing firearms. 
However, a veteran may very well need assistance with finances 
and it may be in the veteran's best interest to maintain a 
fiduciary for that purpose.
    Again, the Committee finds that a determination of 
incompetency regarding financial matters is not a finding of 
incompetence in all aspects of a veterans' life, although this 
is the manner in which current law and regulations operate. The 
Committee believes that this approach is overly broad and not 
narrowly tailored to address specific concerns that would merit 
a denial of rights accorded under the Constitution.
    Next, VA states that even if a veteran remains adjudicated 
incompetent by VA for purposes of handling his or her own 
finances, he or she is entitled to petition VA to have firearms 
rights restored on the basis that the individual poses no 
threat to public safety. This is also an unacceptable remedy 
for several reasons. First, this appellate hearing is held 
before VA personnel and not before an independent authority. 
Second, the practical implication of this structure is the 
immediate abridgement of a veteran's constitutional right; 
then, the veteran is forced to appeal a matter that was never 
decided in the first instance, namely whether the veteran is a 
threat to public or personal safety. As of April, 2013, with 
over 143,000 subject veterans, VA has granted only seven 
requests for relief from NICS reporting. This can hardly be 
advertised as an effective means to safeguard veterans' 
constitutional rights.
    H.R. 602 prohibits disparate treatment of veterans by 
requiring a standard used elsewhere in the Federal government, 
such as the fiduciary program conducted by the Social Security 
Administration.

                                Hearings

    On April 16, 2013, the Subcommittee on Disability 
Assistance and Memorial Affairs conducted a legislative hearing 
on various bills introduced during the 113th Congress, 
including H.R. 602. The following witnesses testified at the 
hearing:
    The Honorable Bill Johnson, U.S. House of Representatives; 
The Honorable Chellie Pingree, U.S. House of Representatives; 
The Honorable Timothy Walz, U.S. House of Representatives; Mr. 
Jeff Hall, Assistant National Legislative Director, Disabled 
American Veterans; Mr. Raymond Kelley, Director of National 
Legislative Service, Veterans of Foreign Wars; Colonel Robert 
F. Norton, USA (Ret.), Deputy Director of Government Relations, 
Military Officers Association of America; Heather Ansley, Esq., 
MSW, Vice President of Veterans Policy, VetsFirst, a program of 
United Spinal Association; Mr. Michael D. Murphy, Executive 
Director, National Association of County Veterans Service 
Officers; Mr. Richard Hipolit, Assistant General Counsel, U.S. 
Department of Veterans Affairs; Mr. David R. McLenachen, 
Director, Pension and Fiduciary Service, U.S. Department of 
Veterans Affairs, accompanied by Ms. Mary Ann Flynn, Deputy 
Director, Policy and Procedures, Compensation Service, U.S. 
Department of Veterans Affairs. The following groups submitted 
statements for the record: The American Legion; Iraq and 
Afghanistan Veterans of America; National Organization of 
Veterans Advocates; and Wounded Warrior Project.

                       Subcommittee Consideration

    The Subcommittee on Disability Assistance and Memorial 
Affairs did not consider H.R. 602 in an open markup session.

                        Committee Consideration

    On May 8, 2013, the full Committee met in an open markup 
session, a quorum being present, and ordered H.R. 602 reported 
favorably to the House of Representatives, by voice vote.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report the legislation and amendments 
thereto. There were no recorded votes taken on amendments or in 
connection with ordering H.R 602 reported to the full House. A 
motion by Representative Doug Lamborn of Colorado to order H.R. 
602 reported favorably to the full House was agreed to by voice 
vote.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee adopts as its 
own the estimate of new budget authority, entitlement 
authority, or tax expenditures or revenues contained in the 
cost estimate prepared by the Director of the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974.

                  Earmarks and Tax and Tariff Benefits

    H.R. 602 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.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate on H.R. 
602 prepared by the Director of the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 
1974.

               Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
for H.R. 602 provided by the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 
1974.

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 13, 2013.
Hon. Jeff Miller,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 602, the Veterans 
2nd Amendment Protection Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Dwayne M. 
Wright.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 602--Veterans 2nd Amendment Protection Act

    H.R. 602 would modify an existing requirement that certain 
individuals determined to be mentally incompetent by the 
Department of Veterans Affairs (VA) be prohibited from 
purchasing or possessing legal firearms. CBO expects that 
implementing H.R. 602 would have no significant budgetary 
impact.
    Under current law, when VA deems individuals to be mentally 
incapacitated, mentally incompetent, experiencing an extended 
loss of consciousness, or otherwise unable to manage their own 
affairs, it is required to provide that information to the 
Department of Justice (DOJ). Such individuals are then added to 
the list of those prohibited from purchasing or possessing 
firearms. Under H.R. 602, a judicial authority would have to 
determine that veterans are dangerous before VA would be 
required to report them to DOJ. CBO expects that such a 
requirement would have an insignificant impact on VA's 
workload.
    Enacting H.R. 602 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    H.R. 602 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.
    The CBO staff contact for this estimate is Dwayne M. 
Wright. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates regarding H.R. 602 prepared by the Director of the 
Congressional Budget Office pursuant to section 423 of the 
Unfunded Mandates Reform Act.

                      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. 
602.

                 Statement of Constitutional Authority

    Pursuant to Article I, section 8 of the United States 
Constitution, the reported bill is authorized by Congress' 
power to ``provide for the common Defense and general Welfare 
of the United States.''

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

              Statement on Duplication of Federal Programs

    Pursuant to section 3(j) of H. Res. 5, 113th Cong. (2013), 
the Committee finds that no provision of H.R.602, the 
``Veterans 2nd Amendment Protection Act,'' establishes or 
reauthorizes a program of the Federal Government known to be 
duplicative of another Federal program, a program that was 
included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-
139, or a program related to a program identified in the most 
recent Catalog of Federal Domestic Assistance.

                   Disclosure of Directed Rulemaking

    Pursuant to section 3(k) of H. Res. 5, 113th Cong. (2013), 
the Committee estimates that H.R. 602 does not require any 
directed rule makings.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    This section provides the short title of H.R. 602 as the 
``Veterans 2nd Amendment Protection Act.''

Section 2. Conditions for treatment of certain persons as adjudicated 
        mentally incompetent for certain purposes

    Section 2(a) would provide that, in any case arising out of 
the administration by the Secretary of laws and benefits under 
title 38, 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 (d)(4) or (g)(4) of section 922 of 
title 18, as pertain to acquiring, possessing, or transporting 
a firearm or ammunition, 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.
    Section 2(b) would make a clerical amendment to the table 
of sections at the beginning of Chapter 55 of title 38.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

TITLE 38, UNITED STATES CODE

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PART IV--GENERAL ADMINISTRATIVE PROVISIONS

           *       *       *       *       *       *       *


           CHAPTER 55--MINORS, INCOMPETENTS, AND OTHER WARDS

Sec.
5501. Commitment actions.
     * * * * * * *
5511. Conditions for treatment of certain persons as adjudicated 
          mentally incompetent for certain purposes.

           *       *       *       *       *       *       *


Sec. 5511. Conditions for treatment of certain persons as adjudicated 
                    mentally incompetent for certain purposes

  In any case arising out of the administration by the 
Secretary of laws and benefits under this title, 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 
(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.

           *       *       *       *       *       *       *