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On June 26, 2008, in full committee markup, Senator Burr successfully amended the Veterans’
Medical Personnel Recruitment and Retention Act of 2008 (S. 2969) with language that would
have provided that “a veteran, surviving spouse, or child who is mentally incapacitated, deemed
mentally incompetent, or experiencing an extended loss of consciousness shall not be considered
adjudicated as a mental defective” for purposes of the Gun Control Act, “without the order or
finding of a judge, magistrate, or other judicial authority of competent jurisdiction that such
veteran, surviving spouse, or child is a danger to him or herself or others.” Senator Burr
introduced a bill, the Veterans 2nd Amendment Protection Act (S. 3167), that would have achieved
the same ends as his amendment to S. 2969.

In the 111th Congress, Senator Burr reintroduced his bill as S. 669, and the Senate Committee on
Veterans Affairs reported this bill (S.Rept. 111-27) on June 16, 2009. Representative Jerry Moran
introduced a similar bill (H.R. 2547).

Mental Defective Adjudications
Under 27 CFR §478.11, the term “adjudicated as a mental defective” includes 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 others, or (2) lacks the mental capacity to manage his own affairs. The term also
includes (1) a finding of insanity by a court in a criminal case and (2) those persons found
incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant
to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. §§850a, 876(b).

This definition of “mental defective” was promulgated by the ATF in a final rule published on
June 27, 1997.50 In the final rule, the ATF noted that the VA had commented on the “proposed
rulemaking” and had correctly interpreted that “adjudicated as a mental defective” includes a
person who is found to be “mentally incompetent” by the Veterans Benefit Administration
(VBA). Under veterans law, an individual is considered “mentally incompetent” if he or she lacks
the mental capacity to contract or manage his or her own affairs for reasons related to injury or
disease (under 38 CFR § 3.353).51 In a proposed rulemaking, the ATF opined that the inclusion of
“mentally incompetent” in the definition of “mental defective” was wholly consistent with the
legislative history of the 1968 Gun Control Act.52 Reportedly, the VA could have been the only
federal agency that had promulgated a definition like “mentally incompetent” that overlapped
with the term “mental defective.”53

Veterans, Mental Incompetency, Firearms Eligibility
In November 1998, the VBA provided the FBI with disqualifying records on 88,898 VA
beneficiaries, whom VA rating specialists had determined to be “mentally incompetent” based on
medical evidence that they were incapable of managing their own affairs.54 Thus, a fiduciary (or
designated payee) was appointed for them. During the determination process, beneficiaries were
notified that the VA was proposing to rate them “mentally incompetent,” and they were able to
submit evidence to the contrary if they wished.55 This determination process is still followed
today at the VA.56

The Veterans Medical Administration has not submitted any disqualifying records on VA
beneficiaries to the FBI for inclusion in NICS for any medical/psychiatric reason (like PTSD),
unless those veterans had been involuntarily committed under a state court order to a VA medical
facility because they posed a danger to themselves or others. In those cases, the state in which the
court resides would submit the disqualifying record to the FBI, if such a submission would be
appropriate and permissible under state law.57

Nevertheless, the decision by the VA to submit VBA records on “mentally incompetent” veterans
to the FBI for inclusion in the NICS mental defective file generated some degree of controversy
in 1999 and 2000.58 Critics of this policy underscored that veterans routinely consented to
mentally incompetent determinations so that a fiduciary (designated payee) could be appointed
for them. Those critics contended that to take away a veteran’s Second Amendment rights without
his foreknowledge was improper. They also pointed out that no other federal agencies were
providing similar disqualifying records to the FBI. This controversy subsided, but it reemerged
when Congress considered the NICS improvement amendments (described above). Also, as of
April 30, 2008, VA records made up about one-fifth (or 21.0%) of all the 552,800 federal and
state records in the NICS mental defective file.

Endnotes

50 Federal Register, vol. 62, no. 124, June 27, 1997, p. 34634.

51 Federal Register, vol. 61, no. 174, September 6, 1996, p. 47095.

52 Ibid.

53 Personal communication with Compensation and Pension Program staff, Department of Veterans Affairs, July 9,
2008.

54 Ibid.

55 Ibid.

56 Ibid.

57 For further information on the treatment of mental illness and substance abuse for the purposes of gun control, see
Donna M. Norris, M.D., et al., “Firearm Laws, Patients, and the Roles of Psychiatrists,” American Journal of
Psychiatry, August 2006, pp. 1392-1396.

58 John Dougherty, “VA Give FBI Health Secrets: Veterans’ Records Could Block Firearms Purchases,” WorldNet
Daily.com, June 22, 2000; and “VA Defends Vets’ Records Transfers to NICS System,” New Gun Week, vol. 35, issue
1650, July 10, 2000, p. 1.