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

House Veterans Affairs Committee, Disability Assistance and Memorial Affairs Subcommittee Hearing

January 23, 2025 (recording here)

HEARING INFORMATION

Witnesses & Written Testimony (linked):

• 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

• Ms. Nancy Springer: Associate Director, National Legislative Service, Veterans of Foreign Wars of the United States

• Michael "Top" Washington: Master Sergeant, U.S. Marine Corps (retired), Everytown Veterans Advisory Council

Keywords mentioned:

• Due process, Second Amendment rights, fiduciary program, National Instant Criminal Background Check System (NICS), mental incompetency, veteran suicide, mental health, appeals process, stigma, medical evidence

IN THEIR WORDS

OPENING STATEMENTS FROM THE SUBCOMMITTEE

• Chairman Morgan Luttrell stated that the hearing would focus on how the VA appeared to strip veterans of their constitutional right to bear arms without due process. He noted that according to VA and Department of Justice regulations, veterans who required fiduciary assistance for financial matters could be automatically reported to the FBI’s National Instant Criminal Background Check System (NICS). The Chairman explained that over 250,000 veterans had been added to the NICS list without a judicial determination that they posed a danger to themselves or others. He underscored that, in contrast to civilian courts, veterans lacked an initial judicial ruling and faced the burden of appealing the VA’s decision after being reported. He argued that this system unfairly subjected veterans to different rules than other Americans.

• Ranking Member Morgan McGarvey observed the complexity of the issue, citing that veterans often value firearm ownership while also facing a sobering epidemic of suicide. He stressed that the Subcommittee should focus on how best to care for veterans, rather than wading into partisan politics. Ranking Member McGarvey pointed to data indicating that a high percentage of veteran suicides involved firearms, making suicide prevention a critical concern. He then outlined the fiduciary process, noting multiple layers of review before a veteran is deemed incompetent to handle financial affairs. He clarified that the VA’s reporting to NICS did not necessarily strip existing firearms but could prevent new purchases once a veteran was found incompetent. He also recognized that the appeals process could be frustrating and called for potential improvements.

SUMMARY OF KEY POINTS

• Dr. Jordan Cohen explained that NICS was designed to prevent individuals prohibited by federal law from purchasing firearms. He stated that veterans determined by the VA to be “mentally incompetent” due to needing a fiduciary were reported to NICS, even without a judicial ruling of dangerousness. He noted that as of late 2023, nearly 98% of federal mental health-related NICS entries came from the VA. Dr. Cohen also mentioned that recent appropriations language temporarily prohibited the VA from reporting such veterans to NICS without a court order and that the restriction would expire unless renewed by further legislation.

• Mr. James McCormick claimed that the VA’s fiduciary program unfairly allowed bureaucrats to remove veterans’ Second Amendment rights without due process. He argued that this practice violated multiple constitutional provisions, particularly the right to keep and bear arms and the guarantee of equal protection. He expressed deep concern that veterans might avoid seeking mental health care or VA benefits for fear of losing their firearms rights. Mr. McCormick urged the Subcommittee to protect the constitutional liberties of veterans who had already sacrificed so much for their nation.

• Dr. Wayne Reynolds drew on his experiences as a Vietnam veteran, educator, and healthcare professional to illustrate how the fiduciary program’s definition of “financial incompetency” had been wrongly equated with dangerousness. He explained that a VA clerk’s decision often led to a NICS report without any judicial or proper medical review. Dr. Reynolds shared personal anecdotes about his humble beginnings and concern that such policies could have harmed his career prospects if he had been flagged. He stressed that stripping veterans of constitutional rights based solely on financial management issues was an unjust violation of due process.

• Ms. Nancy Springer stated that the VFW supported safeguarding veterans’ constitutional rights but believed the fiduciary process itself required reforms. She proposed a second medical exam to confirm the need for a fiduciary, improved in-person assessment by two-person VA examiner teams, and a reassessment of COVID-era determinations. Ms. Springer also recommended clearer VA letters and a judicial review step before any veteran was reported to NICS.

• Mr. Michael Washington recounted his personal tragedy of losing his son in combat and experiencing severe PTSD and suicidal thoughts. He underscored the ongoing crisis of veteran suicides, pointing out that over 70% of these deaths involved firearms. He explained that background checks and other interventions could create critical time and space to prevent impulsive actions during moments of crisis. Mr. Washington urged Congress to preserve necessary safeguards for high-risk veterans, framing the issue as a bipartisan public health challenge rather than a political debate.

• Chairman Luttrell inquired whether the VA had strong justification for stripping veterans of their Second Amendment rights. He then requested Mr. McCormick’s perspective on whether there was enough procedural rigor from the beginning of the fiduciary process to the final decision. Mr. McCormick stated that many veterans received inconsistent information from the VA and were often unaware that needing a fiduciary could lead to a firearms prohibition. He shared an example of a young veteran who discovered he was on the NICS list only after he was denied a firearm purchase and a job opportunity.

• The Chairman asked Ms. Springer about the VA’s correspondence with veterans regarding potential incompetency determinations. Ms. Springer noted that while VA letters included a section explaining the possible effects of fiduciary assignment, the language was lengthy and confusing. She read a portion of a proposal-of-incompetency letter, pointing out that it was buried in legal wording that many veterans found difficult to understand. She believed the VA could significantly improve these letters so veterans would better grasp their rights and the ramifications of the process.

• Ranking Member McGarvey reiterated that his goal was to ensure veterans clearly understood the fiduciary process. He noted that he had not found any instance of a veteran’s existing firearms being confiscated solely because of a fiduciary designation, and he emphasized that no court had ruled the process unconstitutional. He asked Dr. Cohen to confirm that VA determinations were based on medical evidence from the disability claims process. Dr. Cohen affirmed that medical records factored heavily into the VA’s incompetency decisions, and he added that the VA’s reporting was tied to obligations under federal law.

• Ranking Member McGarvey asked Mr. Washington to elaborate on his own experience with service-connected disabilities and the VA system. Mr. Washington said his particular case moved relatively smoothly, but he acknowledged that it did not represent everyone’s experience. He restated that mental health screenings and proper support were crucial. He also underlined the importance of continuing conversations about how to safeguard veterans’ well-being without deterring them from seeking help.

• Rep. Nancy Mace asked Ms. Springer if survivors of military sexual trauma (MST) might avoid care due to fear of losing firearm rights. Ms. Springer answered that this concern extended beyond MST survivors and affected many veterans who worried a disability disclosure could trigger fiduciary status and lead to a NICS report.

• Rep. Mace inquired if it was difficult for veterans to prove they were not dangerous once on the NICS list. Dr. Scott Szymendera explained that the question of “danger to self or others” typically only surfaced if a veteran filed a petition for relief from the firearms prohibition, and statistics showed few veterans pursued that route. He added that at no point before the petition for relief did the VA systematically assess whether a veteran posed an actual threat.

• Rep. Mace then asked Mr. McCormick if veterans received due process before being reported to NICS. Mr. McCormick replied that they did not and emphasized the complexity and costliness of regaining firearm rights. He likened it to being forced to fight for one’s liberty after it had already been removed, explaining that this eroded veterans’ trust in the VA.

• Rep. Maxine Dexter asked Mr. Washington about lethal-means safety counseling, focusing on whether VA providers should receive training to address risk factors. Mr. Washington responded that such training would be beneficial, stressing that veterans needed guidance on ways to create time and space between themselves and firearms during suicidal crises. He argued that these discussions were not about seizing weapons but about education, safety, and accountability.

• Rep. Keith Self questioned whether any other group of Americans faced the same lower threshold for losing firearm rights as veterans with fiduciaries. Dr. Cohen explained that most other prohibited classes under federal law were subject to explicit judicial or statutory processes, suggesting that veterans’ fiduciary-based prohibitions were unique. Dr. Reynolds added that no other group experienced this exact administrative approach.

• Rep. Eli Crane stated that the hearing fundamentally addressed whether unelected bureaucrats could remove veterans’ Second Amendment rights merely because they needed help managing finances. He compared it to stripping civilians’ rights in similar circumstances and argued that it was unconstitutional to make such assumptions about veterans’ mental fitness. He asked Mr. McCormick if it was fair to conclude that over 250,000 veterans had lost firearm rights without evidence of dangerousness; Mr. McCormick confirmed that figure. Rep. Crane took this moment to introduce his bill, H.R. 496, which aimed to restore those veterans’ constitutional rights.

• Rep. Kelly Morrison asked each witness what single action by Congress would most effectively decrease veteran suicide. Dr. Reynolds responded that improving efficiency and reducing bureaucracy in VA healthcare was crucial because unresolved issues drove veterans toward despair. Mr. McCormick stated that denying veterans due process and constitutional rights exacerbated stigma, cost them job opportunities, and eroded trust, thereby worsening mental health challenges. Ms. Springer emphasized overhauling the fiduciary process itself, recommending a medical assessment for dangerousness and a judicial review step before any NICS reporting. Mr. Washington urged changing the culture and stigma surrounding mental health, noting that widespread and consistent counseling could help veterans feel safer seeking help.

• Rep. Derrick Van Orden asked whether the VA was a law enforcement agency. Dr. Cohen briefly answered “no.” Rep. Van Orden then discussed his personal loss of 21 friends to suicide and stated that the true root cause of veteran suicide needed more focused treatment. He argued that removing veterans’ rights without due process not only failed to address the real problem but could also worsen despair among those who served.

• Rep. Jack Bergman noted that much had already been said regarding the need to protect veterans’ rights and improve VA accountability. As one of only three Vietnam veterans remaining in Congress, he reflected on how the country learned to value service members after past mistakes. He emphasized that Congress must hold the VA to higher standards so veterans receive proper assistance without sacrificing their constitutional freedoms.

• Ranking Member McGarvey reiterated his commitment to collaborating with the Chairman on improving all aspects of the VA fiduciary program. He said that the subgroup of veterans deemed financially incompetent and seeking disability benefits was particularly at risk for suicide, according to available data. He also stressed the need to address any flaws in the fiduciary process without discouraging veterans from seeking necessary treatment.

• Chairman Luttrell stated that the Subcommittee planned to identify exact points of failure within the fiduciary process and then pursue legislative solutions. He echoed that veterans’ constitutional rights must be upheld and that veterans deserve to be treated equitably under the law.

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