FRESHER Act of 2017

Mr. Speaker, pursuant to House Resolution 198, I call up the bill (H.R. 1181) to amend title 38, United States Code, to clarify the conditions under which certain persons may be treated as adjudicated mentally incompetent for certain purposes, and ask for its immediate consideration in the House.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to revise and extend their remarks and insert extraneous material in the Record on H.R. 1181.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, too often, as Americans, we tend to take our freedom for granted. We should never forget we owe the freedom to our Nation's veterans. That is why it is so egregious that many veterans come home to find that they have to do battle with the VA--the very agency that is supposed to help and support them--to protect their own constitutional rights. The problem occurs when VA, for whatever reason, determines that a veteran needs assistance managing his or her VA financial benefits and decides to appoint a fiduciary.

Now, there may be many reasons that a veteran might need a fiduciary, such as a veteran who has TBI may have trouble with math and struggles to balance his or her checkbook. But it is important to remember that the decision to appoint a fiduciary is made by a VA bureaucrat, not a judge or a magistrate after ensuring that veteran's due process rights are protected.

Unfortunately, there are serious, unintended consequences when VA appoints a fiduciary. This is because, once VA decides that the beneficiary needs help with finances, even though there may be no evidence that the individual may be a danger to himself or others, the Department sends his or her name to the FBI to be added to the NICS list.

As you know, anyone whose name is on the NICS list is legally prohibited from possessing a firearm. This means that the veteran can no longer participate in sports like hunting or target shooting. The veteran is also legally obligated to relinquish any firearms he or she owns, including collector's pieces and family heirlooms.

I am opposed to the VA's existing policy not only because it deprives veterans of their constitutional rights without due process of law, I am also concerned that these veterans are not able to participate in recreational therapy programs like VA's program at the VA Grand Junction medical center in Colorado that enables veterans with physical and mental disabilities to go hunting or shooting. I know from personal experience that these therapy programs are very effective in helping these heroes recover from injuries that they have received while serving our country.

It is unfortunate that some of the opponents of this bill are perpetrating the outdated stereotypes that people who are mentally ill may be violent and should be feared. I am concerned that these false characterizations may actually deter people from seeking the health services they need.

It is hard enough for some people to admit they need help, Mr. Speaker, but image how much more difficult it is when they fear that they would be stigmatized and isolated. It is also possible that some veterans decide to avoid using VA healthcare services all together out of fear that a VA bureaucrat may decide that they are incompetent and take away their constitutional rights.

Let's take a look at the people who actually are added to the NICS list as a result of the Veterans Administration's appointing a fiduciary.

There are currently more than 1,000 children under the age of 20 here on the NICS list, likely because VA appointed a fiduciary because they are too young to handle their own money.

VA has also added the names of 107,000 people over 80 years old to the NICS list. These individuals probably just need help with their finances due to their advanced age.

But should VA really take away the Second Amendment rights from our Nation's seniors, particularly those who fought for the country? It is outrageous that the only group of people that can have their constitutional rights taken away without a hearing before a judge or magistrate are the very people who fought for those rights and their dependents. Even criminals must be convicted in a court of law before their names are added to that list, Mr. Speaker.

H.R. 1181 would simply prohibit VA from sending veterans' names to the NICS list unless there is an order from a judge or a magistrate that says the person may harm themselves or others.

This proposal has enjoyed bipartisan support in the past. In 2011, the House passed H.R. 2349, which included similar provisions, by voice vote. And just last month, both the House and Senate passed H.J. Res. 40, which prevented the Social Security Administration from implementing a similar policy to report the names of some people who have received disability insurance benefits to NICS.

H.R. 1181 also has wide support among the veterans community, including the American Legion, the VFW, and AMVETS. H.R. 1181 is also supported by the National Disability Rights Network and the National Rifle Association. Additionally, H.R. 1181 has a positive statement of the administration's support.

Mr. Speaker, veterans who fought to defend the Constitution should also be allowed the rights it protects. I urge all Members to support H.R. 1181. It is the right thing to do, and I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

In America, the last time I looked, you are presumed innocent until proven guilty. What we have done with these veterans who have served this country, many of them injured in combat, is we have said you are guilty and you have to prove you are innocent to be able to own a firearm in your own home.

By the way, Mr. Speaker, people who are in a fiduciary status actually statistically have a slightly lower incarceration rate than veterans who are not. So to say that they are a danger to themselves or a danger to others is erroneous.

The other thing I would like to say is that the 21st Century Cures Act, Mr. Speaker, has codified basically the VA policy is what it did. It did not change the policy. What we are saying to veterans is that if you are an honorably discharged veteran who needs a fiduciary for whatever reason, you automatically lose a constitutionally guaranteed right.

I yield 2 minutes to the gentleman from Illinois (Mr. Bost), an active member of the Veterans Affairs' Committee.

Mr. Speaker, I yield 2 minutes to the gentleman from Colorado (Mr. Lamborn).

Mr. Speaker, I yield myself such time as I may consume.

The text of this bill does not remove the names of anyone who is currently on the NICS list. It simply prohibits the VA Secretary from continuing to send the names of beneficiaries who utilize a fiduciary to the NICS list. And there is nothing in the bill that would require the VA Secretary to take any action with respect to those already on the list.

Just one other thing, Mr. Speaker, to show you how the VA's policy is not consistent: just as an example, a veteran who is rated at 100 percent disabled for PTSD is not automatically given a fiduciary, even though the symptoms required for that rating may include suicidal or homicidal ideation. So they are very inconsistent about how they do this. And of the 915,744 veterans who have a service-connected PTSD condition, only 1.7 percent of them have a fiduciary. Remember, they lose their constitutionally guaranteed right.

I yield 1\1/2\ minutes to the gentleman from Texas (Mr. Farenthold), a hardworking member of this conference.

Mr. Speaker, once again, let me state this for the record. The text of this bill does not remove the names of anyone who is currently on the NICS list, except it prohibits the VA Secretary from continuing to send the names of the beneficiaries who utilize a fiduciary to the NICS list.

I don't want guns in the hands of anybody who should not own a gun who is mentally unstable, but what we are saying is that a VA rater should be a judge or a magistrate, where you can argue both sides of this in front of them. It shouldn't be a VA bureaucrat that is doing this.

I yield 2 minutes to the gentleman from Texas (Mr. Conaway), the chairman of the Agriculture Committee.

Mr. Speaker, I yield myself such time as I may consume.

I guess by listening to the debate that is going on, one would assume that someone who has a fiduciary would be a danger to themselves and others, and I think that is completely erroneous to assume that.

Let me read you excerpts of a floor statement that Senator Burr made in 2009 to show you how this can get off track. And we are going to put sort of a human face on this, just an excerpt from a letter that Jennifer wrote as the wife of Corey.

``Corey served in Iraq. He was a paramedic. He was severely injured by an IED explosion in 2004, which caused severe burns, damage to his lungs, and severe traumatic brain injury after shrapnel entered his skull. Corey spent . . . 5 years recovering from his injuries. Jennifer reports that he is walking, talking, and enjoying life at home with his two children.

``Now it gets really sad. Because of his head injury, Corey still requires help with certain things. The VA said he needed help managing his disability compensation payments, and they named Jennifer, his spouse, as his fiduciary''--his wife. ``That is where I would like to read you her letter. Again, I quote from the letter:

`` `On May 19, 2009, we had our annual fiduciary meeting with the VA field examiner. At the end of the meeting, our field examiner said he needed to read a statement to us. He read the Brady Bill statement and then stated that Corey can't own, possess, use, be around, et cetera, any firearms. He then went on to say that anyone in our household can't own a gun while living in this household.

`` `I asked him about Corey going on adaptive hunting trips and he said he couldn't. Corey stated that he had a gun that was handed down from his grandfather and that Corey was going to hand it down to his son, and the field examiner told him that he couldn't have it. He stated to Corey that if he did own a gun or be around a gun that he would be threatened with imprisonment.

`` `The way that that field examiner talked to Corey about this issue was not appropriate. The field examiner said that I could challenge it and handed me a blank sheet of paper with a VA heading. I asked the field examiner for the statement that he read to me, but he said that he had to ask his boss if he could actually provide a copy of that statement. After 2 weeks of me emailing him, I finally got the attached papers in the mail. I think the VA is taking this way out of concept, and I would greatly appreciate your support.'

``Well, in case any of my colleagues think the government would never prosecute someone like Corey for possession of a firearm, being around a firearm, I wish to read to my colleagues excerpts from the VA directive that went out to all VA regional offices on September 29, 2009, on this very issue.

``The directive is meant to inform fiduciary field examiners of their obligation if they were to witness a violation of the Brady Act. I am going to quote from this VA memorandum to the field examiners.

`` `Field examiners or other VA employees who encounter beneficiaries believed to be in violation of the Brady Act are required to notify the fiduciary activity manager as soon as safely possible. At no time should the employee place him/herself in danger. The fiduciary activity manager at the VA regional office of jurisdiction must immediately report the alleged violation to the Bureau of Alcohol, Tobacco and Firearms,' '' and here is the number.

And that is straight out of their memorandum, Mr. Speaker.

We don't want weapons, no one in this room, and none of my colleagues on the VA Committee, Republican or Democrat, want weapons in the hands of someone that is considered dangerous. But we have American heroes that are being denied their Second Amendment right to even keep their grandfather's gun. I feel that, if you want to go and have your due process rights in front of a court of law or magistrate, that is perfectly okay. That is the way our system works. But not a VA rater. They don't get to do that. And I think, by passing this bill, we will guarantee those rights to our American heroes.

I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

I include in the Record two documents from the VFW and The American Legion supporting this legislation.

Veterans of Foreign Wars

of the United States,

March 8, 2017.

Hon. David P. Roe,

Chairman, House Veterans' Affairs Committee, Washington, DC.

Dear Chairman Roe: On behalf of the men and women of the

Veterans of Foreign Wars of the United States (VFW) and our

Auxiliary, I am pleased to offer the VFW's support for H.R.

1181, the Veterans 2nd Amendment Protection Act.

It is unconscionable to require veterans to choose between

the care they have earned and deserve and their

constitutional rights. Your legislation would ensure veterans

who suffer from mental health conditions no longer have to

worry about losing their 2nd amendment rights when seeking

potentially lifesaving mental health care. By elevating the

threshold for inclusion in the National Instant Criminal

Background Check System, this important legislation would

help destigmatize mental health and protect veterans'

constitutional rights.

The VFW commends your leadership on this issue and your

commitment to our nation's veterans. We look forward to

working with you to ensure the passage of this important

legislation.

Sincerely,

Carlos U. Fuentes,

Director,

VFW National Legislative Service.

Mr. Speaker, I, too, served in the military as a military doctor in the 2nd United States Infantry Division in Southeast Asia many years ago, so I have seen patients who were mentally ill. One of the things that has bothered me is that we are perpetuating an outdated stereotype that mentally ill people are prone to violence. Most are not, and perpetuating this stereotype that they are may result in their being isolated or not seeking treatment. This is unfortunate for people who suffer from mental illness and need support and understanding.

I think we do them a great disservice. My bill would require a court of law rather than a VA rating specialist--that is all we are saying here--to determine whether an individual actually poses a danger to themselves or others before their name gets sent to the FBI and added to the NICS list. A VA employee should not be able to add a veteran's name to a NICS list before that veteran has been afforded due process.

Let me explain how bad it really is. It is outrageous that a criminal has more rights than a veteran when it comes to being placed on the NICS list--at least they aren't added to the list until they have been convicted by a judge or a jury, Mr. Speaker. We should at least treat our American heroes that well.

Here is another point I would like to make: a veteran that has been rated--listening to the debate to show you how the VA system is not a standard for everyone. A VA veteran rated 100 percent for PTSD does not automatically get a fiduciary because they are 100 percent service- connected disabled because of their service even though the symptoms require that, for that rating, it may include suicidal or homicidal ideation.

All we are saying--and I think, hopefully, everyone would agree--is that you deserve as an American citizen--and especially an American citizen, Mr. Speaker, who has served this country whether in combat or not, who has served his country in the military--your day in court and at least be heard by a judge and jury.

Mr. Speaker, I reserve the balance of my time.

How much time do I have remaining, Mr. Speaker?

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, this proposal is not new. It has been passed out of committee in 2010, 2011, 2013, and this year. It passed the full House, H.R. 2349, in the 112th Congress, which is included in this proposal, by a voice vote.

On February 2, the House approved H.J. Res. 40, which nullified the Social Security Administration rule that would have similarly restricted the Second Amendment rights to certain disabled people who require help managing their finances. There is no reason that veterans who have fiduciaries should be treated any differently than Social Security beneficiaries who need help managing their finances.

Next, Mr. Speaker, veterans who need fiduciaries are not necessarily mentally ill. A veteran may not be able to handle his or her finances due to conditions such as traumatic brain injury. Furthermore, The American Legion testified in 2015 about a case in which the VA declared a veteran incompetent because he told his doctor he didn't pay his bills. But, in reality, the veteran didn't pay his bills because, like a lot of us, of the division of household responsibilities. His wife paid the bills, and he got caught up in that. Then to get out of it is a chore.

I wanted to say, once again, I really feel strongly about this because we worked on the 21st Century Cures bill on removing the stigma of mentally ill people that because someone is mentally ill, they are a danger to themselves or others. Perpetuating this stereotype, I think, is dangerous. I think it keeps people from coming in and seeking the help that they need.

Also, and I have participated in this, Mr. Speaker, at home where we have used hunting trips or fishing trips to help veterans with PTSD get back on their feet and assume--instead of treating it as a disability and saying: We are going to get you well and back on your feet and be a productive member of society.

I am afraid if we stereotype this, we will prevent people from coming in for the very needed help that they so richly have earned and need.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, as all of us in this incredible place that we are in, the House of Representatives in the Capitol of the U.S., our hearts go out to everyone, especially the families, of all those touched by that horrible tragedy that was just described. I am willing to work with anyone on the committee or otherwise in a reasonable way to keep firearms out of the hands of criminals and people who are dangerous. There is no question we are all willing to do that. But that case did not involve a veteran who had a fiduciary.

I am a strong supporter of the Second Amendment even if others aren't. I think we can all agree that veterans should not be denied the same due process rights that all other Americans receive. What this bill does is ensure that veterans do not lose their constitutional rights without a judicial hearing.

The freedoms granted under the Constitution of this great country should apply to all Americans, especially those who have been willing to put their lives at risk to protect those same freedoms. It is wrong for veterans and beneficiaries who use a fiduciary to lose their Second Amendment right without due process.

This commonsense bill would ensure that no veteran or beneficiary is declared mentally defective simply because a VA rater appoints someone to assist with the management of that person's financial affairs.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, as all of us in this room are, I am personally devastated that our Nation loses 20 of our finest citizens to suicide every day. Ending this tragedy is one of the top priorities we have on the Veteran Affairs' Committee and as a nation. We have and will continue to work with the VA to develop programs that will effectively help identify and treat veterans who may be considering ending their own lives.

But denying veterans who have fiduciaries their constitutional rights will not end veteran suicide. It is unfair to paint all veterans who may need a fiduciary with the same broad stroke and to assume that just because someone needs assistance with their financial affairs, that they may also be violent and a danger or they are contemplating suicide. That is just plain wrong.

It is unfortunate that the arguments advanced by some of the opponents of this bill reinforce the false impression that people who suffer from mental health challenges--and veterans, in particular--are dangerous. There is no evidence that people who suffer from mental illness are more likely to be more violent than people in the general population--just none. I am convinced that perpetuating this outdated and incorrect stereotype makes the situation worse, deterring people from seeking the very health services that they need.

It is difficult for some folks to admit they need help. I saw patients like that for years who finally broke down in my office and explained that they were depressed or whatever the situation may be. Imagine how much harder it is when people feel that they will be stigmatized or isolated because other people may fear them?

By passing this bill, Congress will send a strong message that people who suffer from mental illness are owed the same respect and have the same constitutional rights as every other American citizen.

Once again, Mr. Speaker, I encourage all of our Members to support H.R. 1181, and I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I recently joined the Committee on Veterans' Affairs because of its bipartisan history of working together to improve care for our veterans. I stand ready to work with the committee--in particular, with Chairman Roe--and with every Member of this House to improve and work on the important issues that affect our veterans every day. However, I cannot support this bill, and I strongly urge my colleagues to oppose it.

As this House knows all too well, there is a veterans suicide crisis in this country, a crisis that is enabled by the easy access to firearms. Just last week, the Secretary of Veterans' Affairs, David Shulkin, told the House Committee on Veterans' Affairs that the issue of veteran suicide is one of his highest priorities, and it needs to be a priority of this House as well.

Today, on this day that we have this debate, 20 brave men and women who have worn the uniform in service of this country will take their lives in suicide, and the vast majority of them will use a gun.

As folks all over the country who have helped veterans know, the means matter. Research has shown that more than 85 percent of suicide attempts with a firearm are ultimately fatal compared with just 5 percent for all other means. That is why addressing the public health crisis in the veteran community demands a thoughtful and comprehensive approach: to ensure that veterans in crisis do not have easy access to guns and that they get the care that they need and deserve.

And yet, today, this House is voting on legislation that completely ignores the crisis that many of our most vulnerable veterans are facing. Unfortunately, this bill was rushed to the floor with no consideration in committee, collaboration, or even time for all of us to understand its full implications. The majority scheduled H.R. 1181 for a vote in committee last week with the bare minimum notice required, even having to move the start time of the markup to comply with the 48-hour notice requirement.

During last week's committee markup, I raised the concern shared by many who work closely on this issue that H.R. 1181 would end up being applied retroactively. The result of this bill being applied retroactively would mean that, if it should pass, more than 170,000 veterans currently prohibited from owning a firearm would be able to

pass a background check and buy a gun.

While the chairman expressed his sincere intent and desire that this legislation not be applied retroactively, it is fair to say that reasonable people disagree on how this bill would be implemented. This honest disagreement, alone, illustrates exactly why this House should be taking its time on a bill that could have such a profound impact on our Nation's veterans.

The fact of the matter is that, should H.R. 1181 be signed into law, it would need to be read together with the NICS Improvement Amendments Act of 2007, which requires--requires--Federal agencies to update the records they have previously shared with NICS, meaning, should this bill pass, the VA would be required to remove the 170,000 records they have previously shared with NICS since none of those were approved by a court, nor did they meet the new standard established by this bill.

Now, with respect to the text of the bill itself, the Veterans 2nd Amendment Protection Act, contrary to its name, would create an end run around the firearms mental health prohibitor that we have attempted to refine and improve since Congress passed the Brady Act nearly 20 years ago and the bipartisan NICS Improvement Amendment Act of 2007.

Put simply, this bill would make it easier, not harder, for those veterans in crisis to get access to a firearm by establishing a new judicial requirement that is far higher than any other agency's or department's implementation of the firearms mental health prohibitor, and, quite frankly, would be impractical, if not impossible, for the VA to actually use. The VA is already strapped for resources, and it is unclear if it has the legal standing to initiate a legal proceeding such as that suggested in the bill.

As Members of this House know very well, there has been a fierce debate in this country over the meaning and extent of the Second Amendment right to bear arms. But the question before this House today is not whether an American has a right to own a firearm. The Supreme Court has been very clear on this issue, and the controlling law has been settled. However, constitutional rights are not absolute. As the late Justice Scalia wrote in the controlling Supreme Court Heller decision on the Second Amendment, ``the Second Amendment is not unlimited.''

The question before this House is whether we are going to summarily overturn the VA's efforts over the last 20 years to help prevent veteran suicide and protect veterans' families by reporting the names of veterans with serious mental health issues to the National Instant Criminal Background Check System, known as NICS.

Supporters of this legislation argue that the current process used by the VA to share mental health records with NICS is overinclusive and must be thrown out and replaced with a process that ensures veterans' due process rights.

I agree that the current process is overinclusive, and I agree that we must do more to ensure veterans have sufficient notice, an opportunity to be heard, and a meaningful opportunity to appeal any decision that may impact their constitutional rights; and I stand ready to work with my colleagues on the committee and in this House to more specifically tailor the application of the firearms background checks law as it applies to veterans, both prospectively and retroactively.

But a wholesale elimination of the VA's long-established practice to help keep firearms out of the hands of veterans who are at serious risk of harming themselves or others is dangerous and misguided.

To be clear, of the 170,000 veterans currently prohibited from owning a firearm, as of 2015, almost 20,000 of them were diagnosed with schizophrenia, over 11,000 with dementia, and over 5,000 with Alzheimer's. For a veteran suffering with a significant mental health condition like one of these, access to a firearm is a serious matter.

Moreover, just 3 months ago, this Congress passed bipartisan legislation that codified a process for how the VA can make a determination of the mental capacity of a veteran before that information is sent to NICS. The 21st Century Cures Act, which passed this House 3 months ago by a vote of 392-26, required a veteran to be provided notice of a proposed financial competency determination and given an opportunity to be heard, present evidence, and be represented at a hearing.

H.R. 1181 seeks to undo this carefully crafted compromise before we even have a chance to study the impacts of the 21st Century Cures Act or the VA's existing practices.

Mr. Speaker, I include in the Record a letter signed by 12 veterans, including retired Generals Stanley McChrystal and David Petraeus, whose leadership and support for our military and veterans community is unquestioned and who believe that this bill could put mentally ill veterans in harm's way by giving them easy access to firearms.

Veterans Coalition for

Common Sense,

March 14, 2017.

Hon. Mitch McConnell,

Majority Leader, U.S. Senate,

Washington, DC.

Hon. Paul Ryan,

Speaker, House of Representatives,

Washington, DC.

Hon. Chuck Schumer,

Minority Leader, U.S. Senate,

Washington, DC.

Hon. Nancy Pelosi,

Democratic Leader, House of Representatives,

Washington, DC.

Dear Majority Leader McConnell, Leader Schumer, Speaker

Ryan and Leader Pelosi, As dedicated service members and

members of the Veterans Coalition for Common Sense, we write

to you today to express our grave concerns with legislation

being considered by Congress, the Veterans 2nd Amendment

Protection Act. This proposal would put America's veterans

who need our support the most in harm's way by providing them

with easy access to firearms. Instead of passing this

irresponsible and dangerous legislation, Congress should

instead do more to guarantee that all veterans have access to

world-class medical and counseling services. We urge you to

oppose this bill.

Our nation is facing a devastating epidemic of veteran

suicide. The bill you are debating comes at a time when an

average of 20 veterans commit suicide each day, two-thirds of

whom do so by using a firearm. We know that non-deployed

veterans are at a 61 percent higher risk of suicide compared

to the American civilian population, and deployed veterans

are at a 41 percent higher risk. Firearms are the most lethal

means when it comes to suicide, resulting in death nine out

of ten times. When vulnerable veterans have access to

firearms, they can do harm not only to themselves but also to

family members and loved ones. The impact of these tragedies

is felt in communities across our nation.

Last week, we were pleased to hear Secretary of Veterans

Affairs (VA) David Shulkin announce his intent to provide

urgent mental health care services to veterans with other-

than-honorable discharges. This is a step in the right

direction. Over 22,000 soldiers in the Army alone have

received these bad paper discharges since 2009 due to mental

health conditions, and they are among the ones who most need

access to comprehensive mental health services.

But they are not the only ones. In 2008, President Bush

signed a law requiring all federal agencies to submit the

names of individuals who are legally prohibited from

possessing guns to the National Instant Criminal Background

Check System (NICS). Since then, the VA has submitted over

174,000 names of servicemen and women who require a fiduciary

to manage their benefits and have been determined through

clear and convincing evidence to meet the federal standard

for gun prohibition. Of these 174,000, 19,000 are individuals

that suffer from schizophrenia and another 15,000 have severe

Mr. Speaker, I include in the Record a letter from Everytown for Gun Safety and a coalition letter led by the Newtown Action Alliance signed by over 40 organizations from around the country opposing this bill.

Everytown for Gun Safety,

New York, NY, March 7, 2017.

Re Reject H.R. 1181, which would put U.S. veterans in danger.

Hon. Phil Roe,

Chairman, House Committee on Veterans' Affairs, Washington,

Mr. Speaker, I recognize that the current practice of information sharing between the VA and NICS is overinclusive and that alternatives should be explored that would more appropriately balance veterans' Second Amendment rights with ensuring that veterans who pose a danger to themselves or to others do not have access to firearms.

This bill, however, was not considered through regular order and no genuine attempt was made to work across the aisle or with the VA to craft a real solution that addresses the real crisis of veterans' suicide in this country.

I stand ready to work with the chairman to address legitimate concerns regarding the VA process. And in fact, just yesterday, I visited at length with VA Secretary Shulkin on how we can all work together to keep our veterans safe and get them the care and support they and their families need.

I cannot support any bill, especially one addressing an issue as important as veterans' suicide, through this rushed process.

I ask all of my colleagues to join me in opposing H.R. 1181. Our veterans put their lives on the line for this country. We shouldn't put their lives and their families at risk when they need us most.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume to respond to the assertion that there is no due process in this act and that the 21st Century Cures Act did not do anything to help veterans.

The 21st Century Cures Act codified the following due process guaranteed to veterans through the VA. Individuals are notified by the VA that a fiduciary is recommended and are allowed 30 days to respond with a notification of acceptance or contest, and they are notified of the implications that this would have for being reported to NICS. The veteran then has 60 days to present evidence against the need for a fiduciary. And as required by law, the VA relief process allows impacted individuals to maintain their fiduciary, but regain gun eligibility removing their names from NICS. These are all already processes in place.

I yield 3 minutes to the gentleman from California (Mr. Takano), who is the vice ranking member of the Veterans' Affairs Committee.

Mr. Speaker, I yield 3 minutes to the gentleman from California (Mr. Bera).

Mr. Speaker, may I inquire how much time I have remaining?

Mr. Speaker, I yield 2 minutes to the gentleman from California (Mr. Thompson).

Mr. Speaker, I yield 4 minutes to the gentleman from Arizona (Mr. Gallego).

Mr. Speaker, I yield 3 minutes to the gentleman from Maryland (Mr. Brown).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I note that the chairman noted the support of some of the veteran service organizations, and I think it is noteworthy that the IAVA, the Iraq and Afghanistan Veterans of America, has in the past supported this bill. They do not support it this year. They do not because they are so concerned about the crisis we are facing, particularly in their members--those who have come back from the wars in the last 10 or 20 years. They are concerned about that veteran suicide crisis that we are facing and are concerned that this bill might make that worse.

We have heard repeatedly assertions that this would be the only category, that veterans alone would be deprived without adjudication. That is not true. In fact, the law for the firearms prohibitor covers many categories of people who do not have any legal determination:

Anyone who is an unlawful user or addicted to a controlled

substance is prohibited, does not require any adjudication.

The NICS has 23,000 people who are prohibited under the controlled substance addiction and use category. Anyone adjudicated as mentally defective or committed to a mental institution, there are 4.2 million people. There are a wide variety of people who are in that category, again, many without court orders. Those were aliens, those dishonorably discharged from the Armed Forces, that is 10,000 individuals. So it is not unique to veterans. There are other categories as well.

But I really think the bottom line is this: we have heard a great deal of agreement that we care about our veterans, we want to prevent military suicides, and we know that for some of these veterans, it would be dangerous for them to have a firearm. That is precisely why this committee should have had a hearing, so we would have had the opportunity to systematically address these issues and find a better way forward that recognizes that some veterans who need a fiduciary also should not have firearms, and some who need a fiduciary, there is no concern there. But we have been deprived of that opportunity in committee, to do the work we should be doing in committee, to work together in a bipartisan way to fashion a better way forward.

This is way too far. It is an overreaction to a process that should be fixed, and we are committed to do that. But the alternative we are presented with today will wholesale uproot the 20-year process of the Veterans Administration that would be dangerous and wrong, and we remain committed to working together in committee.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I note that 18 of the 26 Members of the House Veterans' Affairs Committee did not serve during a time when there has been a hearing on this bill--18 of us, and that includes me. The evidence that the chairman was referencing from 2015 was from a hearing that never occurred, so there was never an opportunity to discuss that evidence. Again, I think this underscores the extent to which we really do need a hearing.

I have to say, since 2012, when the Newtown shootings occurred in my district, the public feels differently about this now, and our veterans numbers have been going up and up. So I think it is high time for us to have a hearing. It has been 5 years. We should be looking at this process.

The last point I will note: there has been much made of the Constitution today and how outrageous it is. In 20 years since this process has been in place in the VA, I note that no one has ever challenged this successfully in court as a violation of constitutional due process, and I know the love our veterans have for the Constitution, as we do in this Chamber. That tells me that many families, for example, actually are relying on this.

So, again, I pledge to the chairman we should be working together in committee to get this process right. This is not the way to do it, not with this bill, not with the questions, and not without an opportunity for us to do the things I have referenced.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, we have heard spirited and passionate remarks here today, but I think it underscores how much we would benefit, the veterans that we serve would benefit, their families, and this Chamber would benefit from our pursuing regular order with this very important topic. So, again, I urge in the strongest possible terms for my colleagues to vote against this bill, to give us the opportunity to get this process right, to safeguard our veterans, protect them from military suicide, and to preserve their rights in the best possible way. This hastily considered, rushed-through legislation that leaves way too many questions and way too much risk for our veterans I must strongly oppose.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I rise in opposition to H.R. 1181. As a combat veteran in the Iraq war, the issues we are debating this afternoon are deeply personal to me.

Veteran suicide has reached crisis levels in this country, and our failure to do more to help veterans in desperate need of mental health care is truly shameful. Unfortunately, Republicans have brought forward a bill today that will make this crisis even worse.

Here is the plain truth. If we allow people with serious mental illnesses to purchase dangerous weapons, we are putting their lives and the lives of their loved ones at risk.

Mr. Speaker, at a time when more veterans are taking their own lives, we should be debating how to get them greater resources and support, not easier access to firearms. At least 10--10--esteemed military leaders, including David Petraeus, Michael Hayden, and Stanley McChrystal all agree. Here is what they wrote in a heartfelt letter to Congress:

``Our Nation is facing a devastating epidemic of veteran suicide. The bill you are debating comes at a time when an average of 20 veterans commit suicide each day, two-thirds of whom do so by buying a firearm.

``We know that nondeployed veterans are at a 61 percent higher risk of suicide compared to the American civilian population, and deployed veterans are at a 41 percent higher risk'' than the American civilian population.

``When vulnerable veterans have access to firearms, they can do harm not only to themselves but also to their family members and loved ones. The impact of these tragedies is felt in communities across our Nation.

``The VA has submitted over 174,000 names of servicemen and -women who require a fiduciary to manage their benefits and have been determined through clear and convincing evidence to meet the Federal standard for gun prohibition.

``Of these 174,000, 19,000 are individuals that suffer from schizophrenia, and another 15,000 have severe PTSD.

``For these individuals, possession of a firearm could be fatal.''

They conclude by calling the bill before us today ``irresponsible, dangerous, and life threatening to those who need access to care, not weapons,'' and I couldn't agree more with that.

The question for my Republican friends is a simple one: Do you know more about what is best for our veterans than General Hayden? Do you have a better understanding of what would improve their welfare than General McChrystal? Do you appreciate their needs more acutely than General Petraeus? If the answer is no, then you should vote ``no'' on this bill later today.

Mr. Speaker, if this legislation is signed into law, more veterans will take their own lives. That is the tragic reality we face. Please side with General Petraeus and General McChrystal. Side with your conscience and your values. Side with our veterans. Please vote ``no.''

Mr. Speaker, I include in the Record a letter from the Law Center to Prevent Gun Violence regarding a summary of the effect of H.R. 1181.

Law Center to

Prevent Gun Violence,

March 10, 2017.

Memorandum

To Interested Parties.

From Americans for Responsible Solutions.

Re Effect of H.R. 1181 (2017): Veterans 2nd Amendment

Protection Act.

Summary

H.R. 1181, the Veterans 2nd Amendment Protection Act, would

mandate that veterans determined to be mentally incompetent

or incapacitated by the Veterans Administration (VA) shall

not be considered to have been ``adjudicated as a mental

defective'' for the purposes of federal firearms law without

a finding by a judge or judicial authority that the veteran

is a danger to self or others.

The VA has reported records to the FBI's National Instant

Criminal Background Check System (NICS) regarding more than

170,000 beneficiaries who were adjudicated as mentally

incompetent under a very different standard. The vast

majority of those incompetency adjudications have been made

(1) without a finding of dangerousness and (2) without the

involvement of a judge or judicial officer.

In short, this bill would drastically change the standard

under which veteran beneficiaries may be considered

``adjudicated'' for the purposes of federal firearms law, and

it provides no express time limitation to ensure that this

new standard would not be applied to VA adjudications that

occurred before enactment of this bill. As a result, there is

significant concern about how this legislation would affect

veterans who have previously been adjudicated as mentally

incompetent by the VA, and who are, as a result, currently

considered subject to federal law's firearm prohibition.

The NICS Improvement Amendments Act of 2007 (NIAA) states

that once a federal department or agency is aware that, when

the basis under which a record was made available to NICS

does not apply, or no longer applies, a federal agency must

``update, correct, modify, or remove the record from any

database that the agency maintains and makes available to the

Attorney General, in accordance with the rules pertaining to

that database; and (ii) notify the Attorney General that such

basis no longer applies so that the National Instant Criminal

Background Check System is kept up to date.'' A strong

argument could be made that, if H.R. 1181 were to become law,

most beneficiaries who have been found to be mentally

incompetent by the VA could no longer be considered subject

to federal law's firearm prohibition.

Relevant Language

The relevant language of the bill states: ``Notwithstanding

any determination made by the Secretary under section 5501A

of this title, in any case arising out of the administration

by the Secretary of laws and benefits under this title, a

person who is mentally incapacitated, deemed mentally

incompetent, or experiencing an extended loss of

consciousness shall not be considered adjudicated as a mental

defective under subsection (d)(4) or (g)(4) of section 922 of

title 18 without the order or finding of a judge, magistrate,

or other judicial authority of competent jurisdiction that

such person is a danger to himself or herself or others.''

The key phrase is ``in any case arising out of the

administration by the Secretary of laws and benefits under

this title.'' This phrase determines the scope of the

individuals that would be affected by this bill. It is not

limited to cases that the Secretary administers subsequent to

the enactment of the bill, but rather is unbounded in time.

This language could therefore be interpreted to apply to any

case arising out of the administration of these laws and

benefits by the Secretary, regardless of when the case

occurred. If the NICS Section of the FBI follows this

interpretation, it may remove records of these individuals

from NICS.

This would have far-reaching impact. Currently, few if any

mental incompetency determinations by the VA are made by a

judge, magistrate, or judicial authority. These

determinations are made my VA examiners who determine, in the

course of processing veterans' benefits claims, that as a

result of as a result of marked subnormal intelligence, or

mental illness, incompetency, condition, or disease, a

beneficiary ``lacks the mental capacity to contract or manage

his or her own affairs'' and requires a fiduciary to handle

the disbursement of benefits. Because these beneficiaries

require a fiduciary to handle disbursement of their payments

due to mental incompetence, they are considered to ``lack[]

the mental capacity to . . . manage [their] own affairs . . .

as a result of marked subnormal intelligence, or mental

illness, incompetency, condition, or disease,'' and are

therefore prohibited from possessing a firearm under existing

federal law.

These incompetency determinations may be appealed to the

VA's administrative Board of Veterans Appeals, and then

eventually to federal court, but the federal judges reviewing

the case would be reviewing the VA's finding that the veteran

is mentally incompetent, and would have no basis for

determining whether or not the veteran was ``a danger to

himself or herself or others.'' Determining whether a person

is a danger to self or others is generally outside the

purview of the Veterans Benefits Administration or cases

arising out of the administration of laws regarding veterans'

claims for benefits.

If an incompetent beneficiary seeks relief specifically

from the NICS firearm prohibition, the VA must determine

whether the beneficiary has proven by clear and convincing

evidence that ``he or she is not likely to act in a manner

dangerous to self or others, and the granting of relief is

not contrary to public safety and/or the public interest.''

Essentially, the VA is tasked in these cases with assessing

whether the beneficiary met a substantial burden of proving

non-dangerousness. This does not involve a finding by a

judge, magistrate, or judicial authority. Though veterans may

then appeal an action by the VA denying NICS relief to a

federal district court judge, that judge would be tasked with

reviewing whether the evidence reasonably justified the VA's

determination that the veteran failed to provide clear and

convincing evidence that he or she was not dangerous. It is

not clear even in these rare cases that a judge upholding the

VA's determination would have occasion to make an affirmative

finding that the person was a danger to self or others.

In short, this bill would drastically change the standard

under which veteran beneficiaries may be considered

``adjudicated'' for the purposes of federal firearms law, and

provides no express time limitation to ensure that this new

standard shall not be applied to previous adjudications by

the VA. It could therefore threaten to implicitly require

that NICS lose nearly every prohibiting mental health record

it has ever received from the VA.

Limiting Amendment

In order to avoid the loss of these records in NICS, we

suggest amending the phrase ``in any case arising out of the

administration . . .'' to refer only to cases arising

subsequent to the enactment of this law.

Mr. Speaker, I would like to thank my colleague from Connecticut for yielding me time.

Mr. Speaker, I rise today in opposition to H.R. 1181, which has very little, if anything, to do with protecting veterans' Second Amendment rights as the bill's title suggests.

I am a 30-year veteran of the United States Army. I served in Iraq. I have led soldiers in both combat support and combat service support units in the active and reserve components.

Our servicemen and -women face harsh realities in harsh environments--not just in wartime, but in peacetime as well. Military life, Mr. Speaker, is a hard life during war and in peace. It takes a toll on the body and the mind. The number of military members seeking mental and behavioral health services in the last 16 years, as well as the mental health-related incidences involving soldiers and veterans, substantiates my point.

But our soldiers are resilient, and that is no less true when we take off the uniform.

But for many of our veterans, it might take some extra help, some extra time, to recover from that harsh and sometimes traumatic military experience.

As a nation, we must support our veterans in recovering from that experience not only by providing the benefits they deserve, but by protecting their right to enjoy the rights that they have defended.

But, Mr. Speaker, H.R. 1181 misses the mark. When a determination is made that a veteran is mentally incompetent or incapacitated, for whatever reason, that determination is made to protect them, not to punish or deprive them. When that determination is made, we owe it to our veterans not to put a weapon in their hand, but, rather, to put the full weight of a responsive mental health system at their disposal.

We entrusted our soldiers with a weapon while in uniform, so let's treat our veterans with the same expectations and standards of safety when they take off the uniform. If the unintended consequences of the current law, as the bill's supporters claim, are too broad and disqualified too many of our veterans from responsible gun ownership, then let's work together to tackle that issue.

However, this bill goes too far and would prohibit the VA Secretary from sharing important information with law enforcement on veterans who might be a danger to themselves or to others.

Unfortunately, Mr. Speaker, H.R. 1181 misses the mark and ignores the responsibility to safeguard and take care of our veterans who have sacrificed so much to protect our Nation.

Mr. Speaker, I include in the Record three documents, and they are the testimony of Brigadier General Xenakis, an op-ed from General Chiarelli, as well as testimony submitted by Jeffrey Swanson.

Testimony of Brigadier General (Ret) Stephen N. Xenakis, MD

erik erikson scholar, the austen riggs center

Subcommittee on Disability Assistance and Memorial Affairs, Hearing

June 24, 2015

H.R. 2001--Veterans 2nd Amendment Protection Act

Thank you to the Committee for this opportunity to submit

testimony regarding H.R. 2001--Veterans 2nd Amendment

Protection Act. I am Dr. Stephen Xenakis, retired Brigadier

General and Army Medical Corps Officer, with 28 years of

active military service. I am certified by the American Board

of Psychiatry and Neurology in General Psychiatry and Child

and Adolescent Psychiatry, and have dedicated my professional

career to providing medical and psychiatric care to our

soldiers and veterans and sustaining the readiness of our

fighting force. First and foremost, I am dedicated to

improving and protecting their health and wellbeing, and

therefore urge the committee not to pass H.R. 2001--Veterans

2nd Amendment Protection Act (H.R. 2001) in its current form.

Under the current process, if a veteran is determined to be

incapable of managing his or her disbursement of funds from

the Veterans Benefits Administration (VBA), the veteran is

assigned a fiduciary, categorized as mentally incompetent,

considered ``adjudicated mental defective,'' and therefore

prohibited from purchasing or possessing firearms. In its

current form, H.R. 2001 would

change the process, stating those who are deemed mentally

incompetent by the Department of Veterans Affairs' (VA) would

NOT be considered adjudicated mental defective ``without the

order or finding of a judge, magistrate, or other judicial

authority of competent jurisdiction that such person is a

danger to himself or herself or others. The result being,

individuals who are currently prohibited from purchasing or

possessing firearms, because of a VBA fiduciary finding,

would no longer be prohibited.

Though I concur that there is room for improvement in the

VA interpretation of the mentally incompetent determination,

H.R. 2001 is misguided in its approach. Yes, there may be

individuals who have been swept into the ``adjudicated mental

defective'' category because they need assistance managing

their disbursement of VBA funds and for whom firearms access

would not pose a risk to themselves or anyone else. However,

there are also individuals in this category for whom access

to a firearm would indeed be dangerous. Therefore restoring

firearms in the sweeping manner to everyone declared mentally

incompetent by the VA, as H.R. 2001 would do, would put our

veterans, and citizens, in harm's way.

To discuss H.R. 2001 is to discuss this country's veteran

suicide crisis, and to discuss suicide is to discuss access

to firearms. The high suicide rate among the veteran

population is devastating; a 2012 report from the VA reported

an estimated 22 veterans per day commit suicide. Data shows

recent veterans who were on active duty during the wars in

Iraq and Afghanistan have a marked increased risk of suicide

compared to the general population (41% higher suicide risk

among deployed veterans; 61% higher risk among those non-

deployed). Access to firearms is a significant part of the

problem; a study of male veterans found that veterans were

more likely than non-veterans to use firearms as a means to

suicide. Research shows firearms are the most lethal means to

suicide; an estimated 85% of suicide attempts using a firearm

are fatal, compared to 2% by poisoning or overdose, or 1% by

cutting.

The evidence is strong and paints a grim picture--suicide

is a serious public health problem. According to 2013 data

from the Centers for Disease Control and Prevention, suicide

is the 10th leading cause of death for all age groups.

Suicide is the second leading cause of death for those age

25-34, ahead of heart disease, liver disease, or HIV. Over

half of the 41,149 suicides in 2013 were by firearm.

Our society can mitigate this problem however with smart

policies and practices. We should take a page out of the

military training manuals. The military trains us to think

``safety first'' and avoid unnecessary harm and injury. It is

our standard practice among military psychiatrists to

confront a potentially suicidal soldier and intervene

aggressively to protect the soldier and the family. I

routinely ask--``do you have weapons, where are they, what

can you and your family do now to keep you and them safe?''

As such, it is absolutely crucial, that any veteran who has

been deemed mentally incompetent by the VBA go through an

individualized process to restore his or her firearms rights,

including an assessment for risk to self and others

consistent with best medical practices, to ensure that the

veteran would not constitute a danger to the self or others

going forward. Such a process is not outlined in H.R. 2001

and, therefore, I urge the committee not to pass the

amendment in its current form.

Mr. Speaker, I stand in strong opposition to H.R. 1181, the ``so-called'' Veterans 2nd Amendment Protection Act.

Mr. Speaker, twenty veterans a day tragically take their own lives.

Just ONE veteran taking his or her own life is one too many.

But twenty every day is an epidemic. It is unconscionable, and unacceptable.

With two-thirds of veteran suicides being carried out with firearms, this bill practically pulls the trigger for veterans at risk.

H.R. 1181 threatens the safety of our nation's veterans and potentially others; by providing those veterans suffering from mental illness with greater ease in obtaining a firearm.

The National Instant Criminal Background Check System is a critical tool in stopping those who want to do harm to themselves or others.

If passed, this bill would dangerously alter the protocols for including a veteran in the database when he or she has been assigned a fiduciary.

In addition, over one hundred-seventy thousand mentally ill veterans would be removed from the National Instant Criminal Background Check System.

Instead of wasting time and energy on senseless budget cuts and harmful bills like H.R. 1181, this Congress should be focused on strengthening protocols so that no veteran struggling with mental illness ever falls through the cracks.

Just two months ago, a veteran, Esteban Santiago, suffering from mental illness fell through the cracks and killed five people at my home airport in Fort Lauderdale.

The current protocols failed him. We failed him and we should be doing all that we can to make the system strong for those suffering-- not making the situation worse, as this bill does.

This bill does a grave disservice to those men and women who have served us valiantly.

Moreover, it is opposed by military leaders including General Stanley McChrystal and General David Petraeus, who led our troops in Iraq and Afghanistan.

It is our obligation to ensure every veteran has the physical and mental health care they both deserve and need, We owe them better than this. Instead, this bill prioritizes putting firearms in the hands of mentally ill veterans who are already at serious risk.