August 30, 2023

Congress Must Act to Stop Biden Administration Abuse of Veterans, FBI NICS

By Mark Oliva

The Biden administration continues to find ways to break faith with America’s veterans. Beyond the disastrous withdrawal from Afghanistan and the unanswered questions left after 13 U.S. service members were killed in a suicide bombing in the final stages of evacuations from Kabul, Afghanistan, White House officials are robbing veterans of the rights they fought to protect.

The Biden administration’s Department of Veterans Affairs has been quietly adding names of veterans who require financial supervision – or a fiduciary – to the FBI’s National Instant Criminal Background Check System (NICS) database as prohibited individuals. This underhanded move might satisfy gun control supporters but is a blatant breach of trust with the very individuals who swore oaths – up to and including their lives – to defend the U.S. Constitution that protects the rights of Americans.

Bureaucrats at the Department of Veterans Affairs are using a little-known rule to skip any judicial proceedings and are doing this without fanfare. The decision to unilaterally wipe away civil liberties has been delegated to unaccountable government employees.

Congressional Action

This is a brazen abuse of bureaucratic authority that must end. American citizens’ Second Amendment rights are protected and can only be stripped for specific instances, including:

convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
who is a fugitive from justice;
who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802);
who has been adjudicated as a mental defective or has been committed to any mental institution;
who is an illegal alien;
who has been discharged from the Armed Forces under dishonorable conditions;
who has renounced his or her United States citizenship;
who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or
who has been convicted of a misdemeanor crime of domestic violence.

Veterans, though, are facing a bureaucratic nightmare. Those veterans needing financial supervision are losing their Second Amendment rights without a court hearing. Several in Congress are fighting back.

Chairman Mike Bost (R-Ill.) introduced H.R. 705, the Veterans 2nd Amendment Protection Act, earlier this year. That bill specifically bars the Department of Veterans Affairs from transmitting veterans’ names to FBI NICS solely for the reason that the veteran has been appointed a fiduciary to assist in managing their financial details.

The legislation was described in a July hearing as ensuring “… that veterans are afforded the same due process that every other American receives before any action is taken that would deprive them of one of the constitutional rights that they fought to protect.”

“For far too long the men and women who have fought to protect every Americans’ constitutional right to bear arms have wrongfully been discriminated against. This Congress, that ends,” said Chairman Bost when he introduced the legislation. “Today I am reintroducing the Veterans 2nd Amendment Protection Act, legislation to ensure that veterans are given the same due process rights as every other American. No VA bureaucrat should have the ability to instantly strip a veteran of their 2nd Amendment rights simply because they use a fiduciary to help them manage their benefits.”

Veterans Groups Support

That bill has the backing of both The American Legion and the Veterans of Foreign Wars (VFW), two predominant veterans groups.

“It is both sad and ironic that the veterans’ community, a community in which each and every member swore to uphold the Constitution of the United States – including the 2nd Amendment — requires advocacy to maintain their constitutional right to bear arms,” The American Legion posted to their website. “Unless deemed unfit to possess weapons by a judicial authority with the full benefit of due process, The American Legion believes that each veteran, regardless of disability, should maintain the right to possess a firearm.”

The VFW, likewise, supports Chairman Bost’s bill, noting in Congressional testimony, “The VFW supports this proposal to protect veterans’ Second Amendment rights and to establish due process for veterans who have been assigned fiduciaries before referring them to the National Instant Criminal Background Check System (NICS).”

The VFW went further to note that the abuse of FBI NICS to deny veterans their Second Amendment rights is unique among federal agencies. VFW officials noted that the Social Security Administration does not make the same determination of gun rights when bureaucrats there face the same issue as those who are not veterans. Social Security Administration officials told FBI NICS “that the inability to manage one’s finances does not always preclude someone from managing other aspects of their life.”

The VFW also noted that the submission of names to add to FBI NICS prohibited individuals is extraordinarily high among federal agencies. One Congressional Research Service summary noted that after Congress passed the 2007 NICS Improvement Act to assist states and federal agencies to submit disqualifying records to FBI NICS, states added 6,133,617 records through 2020, a massive 3750 percent increase. Federal agencies added 263,225 records in the same time period, with the Department of Veterans Affairs accounting for 258,225 of those, or 98 percent of all federal records added.

Time to End NICS Abuse

Congressman Chip Roy (R-Texas) introduced his own similar bill to protect against government bureaucrats from wiping out veterans’ Second Amendment rights. The Defending Veterans’ Second Amendments Rights Act. H.R. 5286, would prohibit the Department of Veterans Affairs from transferring veterans’ information to the Federal Bureau of Investigation’s National Instant Criminal Background Check System (NICS) solely because they have received a disability rating for a mental illness.

“America’s heroes should never have to fear losing their God-given right to self-defense simply for seeking the care they have earned in the process of protecting our republic,” Rep. Roy said in a press release.

Allowing this abuse of the FBI NICS by government bureaucrats at the Department of Veterans Affairs is an affront to the service of veterans who fought to protect those rights for all Americans. Biden administration officials are relegating veterans to second-class citizens and their civil liberties to second-class rights.

Congress has much to do when the House of Representatives and Senate reconvene next month. Ending this abuse should be at the top of their list.

About the Author
Mark Oliva is NSSF’s Managing Director of Public Affairs for NSSF, The Firearm Industry Trade Association. He is a retired Marine Master Gunnery Sergeant with 25 years of service, including tours in Iraq, Afghanistan, Haiti, Albania and Zaire.