by Alexandria Kincaid, Attorney
For years (at least since 2012), over 99% of all names reported to the National Instant Criminal Background Check System (NICS) list’s “mental defective” category are those of veterans. These veterans are reported by the Department of Veterans Affairs (the VA) to the NICS, without first allowing the veterans an opportunity to appear and present their side of the story to a judge or even the VA Board subject to ordinary court rules, such as the rule that does not allow hearsay evidence.
Before taking away a veteran’s gun rights, the VA does not even need any evidence that the veteran is a risk to the public or himself. Rather, if a veteran cannot manage his or her financial affairs because he or she will be undergoing significant treatment, such as multiple surgeries, the VA will deem the veteran incapacitated, appoint the veteran a fiduciary to manage the veteran’s assets, and report the veteran to NICS. As soon as these veterans are reported, the veterans lose their gun rights. One of my primary practice areas is to help veterans who have lost their gun rights to get them back.
One of the most egregious cases to come through my office involved a veteran named Michael Tam. If you want to hear first-hand how the VA is taking away veterans’ gun rights, listen to Mr. Tam’s story at in Episode 27 of the Gun Law Podcast at https://alexkincaid.com/index.php/podcasts. His tale is classic: he served our country abroad, was injured, required treatment, was appointed a “fiduciary” to manage his finances, and then lost his gun rights.
Mr. Tam came to me for help after the VA took his gun rights away without a hearing or notice to him. After serving our country, Mr. Tam needed long-term medical rehabilitation, which included multiple surgeries. The VA declared him mentally incapacitated, because the VA decided that he would require the help of another person while undergoing treatment. Without his knowledge, consent, or the input of his treating physicians, the VA unilaterally appointed this vet an agent to take control of his finances (a fiduciary), and reported him “adjudicated a mental defective” to the FBI. This VA action, of course, revoked Mr. Tam’s right to possess a firearm. Have no doubt, the VA regularly infringes upon veterans’ gun rights.
Congress will consider the Veterans 2nd Amendment Protection Act, which will prevent the VA from reporting veterans to the FBI unless the veteran was afforded due process. This law would require that the veteran receive notice and a hearing before a court, rather than the mere decision of the VA board. Urge your Congress men and women to support the Veterans 2nd Amendment Protection Act.