VA Coming For Your Guns

Once upon a time, it was though that the world was flat.

For good reason, too.

If you lack the perspective of seeing the world from above the world and can only see it from the ground, it sure does appear to be flat.

That’s how myths and fallacies work – there’s often a good reason a myth exists, and sometimes it is because there is a kernel of truth in it.

Such is the myth that the Government is coming for your Guns if you have PTSD.

That myth is out there – just the other day, I ran into a Veteran on Facebook discouraging Veterans from seeking PTSD benefits or treatment out of fear that the Veteran might get his guns taken away.

I promise you, it’s a myth.

And when you hear the REAL reason this myth was started, you’ll also see that there is a kernel (a very tiny kernel) of truth in it.

My Background With Lawyers, Vets and Guns.

Sounds like the alternative title of a Warren Zevon song, right?   “….send lawyers, vets and guns…”

All kidding aside, I speak from a position of authority on this topic.    I am an avid hunter – mostly deer, but I’m teaching myself turkey huntin’, too.

I collect police-issue S&W revolvers.

And, once upon a time, I was a licensed firearms dealer.

Point is, I’m no stranger to guns, or gun-laws.

I’m also no friend of the VA – while there are good people – some REALLY good people – working for the VA, I’m not going to  blow sunshine up your arse about them.

Leadership at the VA perpetuates an adversarial and antagonistic relationship with the Veterans community, and messes with a lot of lives (sometimes permanently) with their BS bureaucrat game-playing.

Lastly, I have been working with Veterans for over 10 years –  thousands of Veterans.  In all those years, I have never once seen the VA take someone’s guns.

I have seen Veterans who are competitive pistol shooters AND who have a PTSD diagnosis.

I have known Veterans who have been rated 100% disabled due to a mental health condition who still own their firearms, and still go hunting whenever they can.

I say this with 100% sincerity:  The VA is not coming for your guns if you get benefits or treatment for PTSD.

Read that again. And again. And again.

Until it sinks in.

Where, then, does this myth come from?

Let me tell you…

Why Veterans Think the VA Is Coming for your Guns.

The VA has a program called the Fraudiciary Program.

Okay, it’s really called the VA Fiduciary program, but it’s so rife with fraud and theft and criminal behavior that “VA Frauduciary Program” is a much more descriptive title.

When the VA decides – often wrongly – that a Veteran is incompetent to manage their own finances, they often place the Veteran in the Frauduciary program.

If the Veteran is lucky, they will have their money managed by a “Fiduciary” that ignores their requests and doesn’t communicate with them.  Many Veterans, however, are appointed a Frauduciary who is in jail, stealing enough money to later get thrown in jail, or worse.

But something else happens when the VA proposes to find the Veteran incompetent to manage their own money.

They get a letter like this:

VA Coming For Your Guns

It is this paragraph in the VA letter from which the myth that the VA is coming for your guns is derived:

“A determination of incompetency will prohibit you from purchasing, possessing, receiving, or transporting a firearm or ammunition. If you knowingly violate any of these prohibitions, you may be fined, imprisoned, or both pursuant to the Brady Handgun Violence Prevention Act, Pub.L.No. 103-159, as implemented at 18, United States code 924(a)(2).”

Can the VA Prevent You From Purchasing a Firearm?

No.

Not for these reasons, or any of which I am aware.

At least not legally.

The paragraph cited above is a perfect example of how bad legal advice causes a lot of problems.

Somewhere, at sometime, an attorney in the VA Office of General Counsel (a group not exactly known for the legal acumen) decided that there was a connection between “financial incompetency” for the purposes of guardianship and having a “mental defect” for purposes of the Brady Handgun Violence Prevention Act.

Being that bad lawyers are often supervised by bad lawyers (or else they would become good lawyers), this horse-crap legal analysis floated to the top of the VA.

And, as a result, every time the VA sends out a letter proposing to find a Veteran financially incompetency, they also get lied to about the implications of that proposal insofar as 2nd Amendment rights.

And tacky and base politicians, who know that the best way to get a “bear” out of hibernation and out to the voting booths is to poke them, translate this into “The VA is Coming for Your Guns.”

The whole thing would be kinda funny but for the following consequences:

  1. Veterans who need help with mental health conditions are scared to apply for VA benefits or treatment because they believe the VA is coming for their guns
  2. Politicians get “wins” stoking up paranoia and anger in a Veterans community that is already disabused and isolated by the VA, encouraging them to keep “poking the bear”.
  3. Nobody points out to the VA the REAL problem – the REAL reason for the myth – is that they are 100% wrong on the law and need to change it before something really bad happens.

What is the Actual Law When it Comes to Guns, Veterans and Financial Incompetence?

The VA appoints Frauduciaries when a Veteran is found to be incompetent to manage their finances.

That phrase is hugely important – the VA’s incompetency determination is limited ONLY to an ability to manage ones own finances, and speaks to no other type of competency.

In fact, it is not entirely uncommon to find Veterans who are incompetent to manage their own finances…but who are completely competent for all other purposes.

The Brady Bill, on the other hand, forbids an individual from owning or buying a firearm after an adjudication of a mental defect, as that term is defined under 18 U.S.C. § 922(g)(4).

A “mental defect” for the purposes of the Brady Bill is totally different from financial incompetence.

In fact, a VA adjudication of financial incompetence is not an adjudication of “mental defect” in accordance with the Brady Bill.

So, when the VA tells Veterans that, if adjudicated financially incompetent under the VA Frauduciary Program, they will be prohibited from buying or owning firearms, the VA is violating the Constitution in about 457 ways.

Ironically, the NRA, who has pockets deep enough to put an end to the VA Frauduciary Program, has never once lifted a finger to defend a Veteran in this position.  Why?  I’ll let you answer the question yourself, but it has a lot to do with paying “lip service” to Veterans.

Here are just a few of the Constitutional Violations:

  1. To the extent that the VA has – or will – take any action that results in the restriction of the Veteran’s ability to own, purchase or possess a firearm because of this decision now under appeal, the VA has violated the Veterans’ 2nd Amendment right under the U.S. Constitution to keep and bear arms and the Veteran’s 1st Amendment right to free speech, his/her 5th and 14th Amendment right to Equal Protection Under the Laws of the United States, and his/her constitutional (substantive and procedural) due process rights.
  2. To the extent that – upon written request from the Veteran – the VA does not immediately rescind a proposal to restrict a Veteran’s right to own or purchase firearms because of the above nonsense, the VA  has interfered with the Veteran’s property rights under the U.S. Constitution
  3. The VA’s entire “fiduciary program or process” is constitutionally defective as over-broad and/or vague, violates equal protection, violates substantive, procedural and economic due process, and amounts to an unconstitutional taking in violation of the 4th Amendment of the United States Constitution, to the extent that the VA is using it to propose or actually restrict gun ownership or purchase rights by Veterans. See e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 435 (1982). The 5th Amendment requires the Government pay just compensation when it takes personal property, just as when it takes real property and the US Government may not make private citizens relinquish their property without just compensation. Horne, et al, v. Dept. of Agriculture, 135 S. Ct. 2419 (U.S. 2015).
  4. The VA’s proposal to restrict any gun-ownership right based on a finding of financial incompetence may amount to even a regulatory taking, in violation of the US Constitution’s Takings Clause when a government law or regulation directly appropriates the personal property of a private citizen for any purpose. Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922).
  5. Let’s not stop there – the VA’s entire Frauduciary Program is an unconstitutional “regulatory taking” of private property.  When the government requires a private property owner to take certain actions with regard to that property – i.e., turn it over to a fiduciary and pay that fiduciary to manage that money – the VA commits a “per se” taking which, even if constitutional requires compensation without examination of the government’s motive or public intent. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426–435 (1982).  In other words, if the VA is appointing a fiduciary to manage your money, and if such appointment is constitutional, then the VA needs to pay YOU for the privilege of taking your money.

Bottom Line when it Comes to the VA and a Veteran’s Guns.

  1. If you are getting treated by the VA for a mental health condition, the VA is not going to take your guns away.
  2. If you are getting benefits from  the VA for a mental health condition, the VA is not going to take your guns away.
  3. Anyone that tells you that (1) or (2) is happening is either a) a liar, b) a con-artist, c) a professional politician lying to you to get you outraged, or ….well, you get the idea. It’s just not true, and so you should question the motive of the person that spreads a false statement.
  4. If the VA proposes to find you financially incompetent, they STILL can NOT take your guns away, or take away your right to buy guns.
  5. If the VA proposes to find you financially incompetent, and you get the “Brady Letter” shown above, find a lawyer, ASAP.  A federal court injunction will often prevent the VA from reporting you to the FBI or the NICS database even if it finds you incompetent to manage your money.

 

 

 

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