The Brady Handgun Violence Prevention Act also referred to as the Brady Bill is a law passed in 1993 requiring a waiting period on sales of handguns, along with a criminal background check on the buyer. The Act was named after James Brady, who was shot by John Hinckley Jr. during an attempted assassination of President Ronald Reagan on March 30, 1981.
Under the Brady Bill, the Veteran’s Administration (VA) reports the names of Veterans found incompetent to manage their own funds to the Justice Department. This prohibits Veterans from purchasing, possessing, receiving or transporting a firearm or ammunition. VA will report their name to the Federal Bureau of Investigation (FBI) if the Veteran has “been adjudicated as a mental defective or been committed to a mental institution.” The FBI adds their name to the national background check system that will prevent gun dealers from selling a firearm.
There is now a congressional bill, sponsored by House Veterans’ Affairs Committee Chairman Phil Roe, R-Tenn., that could allow Veterans deemed mentally incompetent to own guns. Currently, Veterans can appeal to the VA for an exemption from the gun prohibition. Roe’s bill, which could affect hundreds of thousands of Veterans now prohibited from owning a firearm (more than 170,000 Veterans who are prohibited from obtaining a firearm), would require a court hearing and a judge’s ruling before they are deemed mentally incompetent and before their names are added to the federal database. The bill states that a person who is “mentally incapacitated, deemed mentally incompetent” or experiences periods of blackouts shall not be “adjudicated as a mental defective” without a judge’s ruling.
The bill was rushed ahead of widely supported proposals like a plan to reform the appeals process for Veteran’s disability benefits. Roe’s bill has received the backing of the White House and Department of Veterans Affairs. The National Rifle Association supports the bill.
Many Veterans groups and gun-safety organizations opposed the bill. Representative Elizabeth Esty, D-Ill., quoted from a 2016 VA report that more than twenty Veterans a day commit suicide in this country and the majority of them use a gun.
The 2016 VA report is one of the most comprehensive analyses of Veteran suicide rates in the United States in which VA examined more than 55 million Veteran’s records from every state in the nation. More than 55 Million Veterans’ Records Reviewed From 1979 to 2014 from Every State in the Nation. The study also concluded that since 2001, adult civilian suicides increased 23 percent, while Veteran suicides increased 32 percent in the same time period. After controlling for age and gender, this makes the risk of suicide 21 percent greater for Veterans.
A coalition led by retired Gens. Stanley McChrystal, David Petraeus, Peter Chiarelli, and Wesley Clark wrote a letter to lawmakers saying the proposal would “put America’s Veterans who need our support the most in harm’s way, by providing them with easy access to firearms.”
The current Federal law pertaining to this subject mandates that specific requirements – or due process – be followed prior to a finding of incompetency is made.
For the VA to make a determination that a Veteran is mentally incompetent to manage their own funds and require a fiduciary there has to be clear and convincing evidence that the Veteran doesn’t have the mental capacity to manage their own finances. The issue of incompetency is another area in VA law where the Veteran gets the benefit of the doubt. If reasonable doubt arises about whether a Veteran is competent, doubt is resolved in favor of the Veteran being competent. In order for this presumption of competency to apply, there must be an approximate balance of both positive and negative evidence as to the Veteran’s mental capacity. The VA is required to obtain a competent medical opinion as to the Veteran’s capacity to manage their own funds whether it is due to a psychiatric disability or a disease or illness.
Veterans may also appeal findings of incompetency through the same judicial review process as with the denial of benefits. If you, or someone you know, receive this type of notice – and you disagree with the proposal – remember that you are entitled to due process and should contest the action immediately.