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Veterans and Their 2nd Amendment Rights

Can a VA Social Worker Strip Veterans of 2nd Amendment Rights Without Judicial Review? Administration: Yes, We Can!

For most people, the constitutional freedoms of association, speech, property rights and the right to keep and bear arms are protected by a guarantee of due process and judicial review. The Executive branch cannot generally unilaterally strip citizens of constitutionally-enshrined natural rights, unless they get clearance from the judiciary branch.

For example, a felon can be stripped of his right to vote or own firearms – but to enforce it, the executive branch’s prosecutors have to show that he’s been convicted in a court first.

For our nation’s veterans? Not so much.

Senator Tom Coburn (R-Okla.) is objecting to a passage in the current National Defense Authorization bill that allows Veterans Affairs administrators to strip veterans of their 2nd Amendment right to keep and bear an otherwise legal firearm. This is sometimes done when VA officials deem a veteran at high risk of violent or suicidal behavior, though some critics have held that veterans have been stripped of their 2nd amendment rights not just because they are violent or suicidal, but because they have trouble managing their own financial affairs. Current law allows VA Social Workers to deem a veteran mentally infirm if he relies on someone else to help him manage his financial affairs. Coburn believes that the law that allows this is too broadly written, and that thousands of veterans have had their rights unjustly taken away.

Senator Coburn wants the VA to gain court approval before stripping veterans of their guns.

Under current law, the Department of Veterans Affairs – part of the executive branch – simply forwards the names of any veterans it deems incompetent or mentally ill to the FBI. The FBI then includes their names and Social Security numbers in a federal database. If a veteran on the list tries to buy a firearm, he or she will fail the background check. Gun dealers are prohibited from selling them a firearm.

Under that scheme, the executive has near dictatorial authority to arbitrarily deny gun rights to veterans, without any burden of proving the VA’s case to an independent judiciary. This is unacceptable, says Coburn, who is trying to add an amendment to the Sportsmen’s Act of 2012 (S. 3525), now making its way through the Senate, to require judicial review of the decision to sever veterans from their 2nd Amendment rights. “All we’re asking for our veterans is that, if their rights are taken away, that it be adjudicated by a judge or magistrate… rather than by a social worker at the VA,” he said.

Leading Democrats, however, want the VA to retain the unilateral authority to prohibit certain veterans from firearms ownership.

“… If you are mentally ill, whether you’re a veteran or not, just like if you’re a felon, if you’re a veteran or not, and you have been judged to be mentally infirm, you should not have a gun,” argues Senator Charles Schumer (D-NY).

Schumer misses the point. Coburn is not saying that the mentally ill and felons should own firearms. Coburn is simply arguing that if the VA thinks it can make a case, it should have the burden of proof. The presumption should be in favor of liberty.

Other Democrats, though, have advocated keeping the discretionary authority with the VA, since they have the medical professionals. This argument, however, would be wholly inadequate in any other context. All other citizens are entitled to judicial review of the abridgment of their civil liberties. The executive branch does not even have the authority to unilaterally revoke the individual rights  of neo-Nazis and communists, without judicial review.

The VA has referred over 127,000 veterans to the FBI since 1997. Less than 200 have ever petitioned to have their names removed from the database.

As of August 2011, the VA accounted for 98 percent of submissions to the FBI database by a federal agency for mental health concerns. Additionally, veterans account for 11 percent of all Americans included in NICS as persons prohibited from possessing or purchasing firearms because of mental health concerns (138,968 of 1,286,489 individuals).

Iraq and Afghanistan Veterans of America has come out in favor of the Coburn Amendment, with IAVA spokesperson John Tarantino on record saying these actions by VA social workers could stigmatize veterans and actually deter them from seeking much needed care.

There is a precedent for doctors putting a mental health “hold” on patients deemed to be a danger to themselves or others. This is accomplished differently in each state. A doctor can, in these cases, involuntarily commit someone to confinement in a mental health treatment facility. However, a magistrate must generally review each case within a proscribed number of hours. In California, the 5150 process – named for the section of the California Code that governs the process of involuntary commitment, is a 72-hour hold, pending the review of a psychiatrist. If the psychiatrist deems that the individual needs to be involuntarily committed, the individual being committed is entitled to a hearing by a magistrate within 14 days. Baker Act processes in Florida are similar, except a magistrate or other court-appointed official must hear involuntary commitment cases within five days. Other states roughly parallel this process. We do not simply waive constitutional rights altogether based on the say-so of a police officer, social worker, or any other member of the executive branch.

Well, except for veterans.

Don’t expect Republicans to go to the mat over this one, though. Former Presidential Candidate John McCain does not want a fight over this issue, fearing that the Democratic Senate majority will seize on the issue to severely restrict the right of the minority to block legislation. Currently, Senate rules require a 60-vote supermajority to release a bill from debate and free it up for an up-or-down vote. This requirement makes it possible for the minority party to block unwanted legislation and appointments, including Supreme Court appointments. It also ensures that every covered bill passed by the Senate enjoys at least some bipartisan support, unless one party can lock up a 60-vote majority.

McCain and some other Republicans don’t want to jeopardize the ability to filibuster. They figure they will need it in battles ahead over fiscal policy and Supreme Court nominees.

What are your thoughts?

Contributed by Jason Van Steenwyk

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