Gun Control, Veterans Benefits, and Mental Incompetency Determinations

April 5, 2017 – September 7, 2021 R44818

Gun Control, Veterans Benefits, and Mental
Incompetency Determinations
Updated September 7, 2021
Congressional Research Service
https://crsreports.congress.gov
R44818

Gun Control, Veterans Benefits, and Mental Incompetency Determinations

Summary
Since 1998, under the Brady Handgun Violence Prevention Act of 1993 (Brady Act; P.L. 103-
159), the Department of Veterans Affairs (VA) has provided records on beneficiaries for whom a
fiduciary has been appointed to the Federal Bureau of Investigation (FBI) for inclusion in the
National Instant Criminal Background Check System (NICS). The NICS Improvement
Amendments Act of 2007 (NIAA; P.L. 110-180) require VA to notify beneficiaries of the
ramifications of mental incompetency determinations and a potential loss of their gun rights, as
well as provide those beneficiaries with an avenue of administrative relief, by which they could
appeal such determinations and have their rights restored. In the 21st Century Cures Act (P.L. 114-
255), Congress included a provision that codified certain VA procedures related to mental
incompetency determinations and potential loss of gun rights.
During the 2020 presidential campaign, the Biden-Harris ticket indicated it supported revising
and reissuing a December 2016, Social Security Administration (SSA) final rule that was vacated
by the 115th Congress (P.L. 115-8) under the 1996 Congressional Review Act. This rule would
have established procedures for Social Security disability programs that would have been parallel,
but different from VA’s NICS procedures. Under the vacated rule, SSA disability beneficiaries
who were appointed a “representative payee” to handle their day-to-day affairs and whose
disability could be tied to a mental impairment would have been referred to the FBI for inclusion
in NICS. While the SSA has yet to reissue a revised rule, it could raise questions once again about
VA procedures, in that, VA determinations are not always tied to a diagnosed mental impairment.
From the 110th through the 113th Congresses, proposals were reported from committee, passed
either the House or Senate, or both, that demonstrated that some Members of Congress viewed
those VA procedures as inadequate. In the 114th Congress, related amendments were considered,
but not passed, on the Senate floor in the wake of mass shooting incidents in December 2015 in
San Bernardino, CA, and in June 2016 in Orlando, FL. In the 115th Congress, the House of
Representatives passed the Veterans 2nd Amendment Protection Act (H.R. 1181), a bill that would
have prohibited the VA from determining any beneficiary for whom a fiduciary is appointed,
because he or she “lacks the capacity to contract or handle his or her own affairs,” as “adjudicated
as a mental defective” for the purposes of gun control, unless a magistrate or judicial authority
also rules that the beneficiary is a danger to himself or herself or others. Similar proposals were
introduced in the 116th Congress (H.R. 3450 and H.R. 3826/S. 4888), but no further action was
taken on these bills. In the 117th Congress, Representative Mike Bost, the ranking minority
member on the Committee on Veterans’ Affairs, has introduced a similar bill (H.R. 1217), as has
Representative Chip Roy (H.R. 1771), who also sits on that committee.
Some Members of Congress could still view the existing VA procedures as an incongruity in the
law. They may ask why VA is the only federal department or agency that has made substantial
numbers of NICS referrals to the FBI based on mental incompetency determinations, even though
other federal agencies that provide similar disability and income security benefits have not done
so. They could argue that this seeming incongruity calls into question whether VA benefit claims
and disability rating procedures are substantive enough on their own to justify the taking of a
constitutionally enumerated right like the right to keep and bear arms under the Second
Amendment. Members of Congress who support the existing VA procedures could counter that
VA has complied with the Brady Act and NIAA and that public safety is enhanced by its NICS
referrals to the FBI. They could also contend that VA procedures act to protect VA beneficiaries
from the harm that might result if they acquired firearms and used them improperly due to
reasons possibly related to their mental incompetency. They could contend further that Congress
seconded VA procedures by codifying them in P.L. 114-255.
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Introduction
During the 2020 presidential campaign, then-candidates, now President Joe Biden and Vice
President Kamala Harris, indicated that they supported reviving a December 2016, Social
Security Administration (SSA) final rule that was vacated by the 115th Congress (P.L. 115-8)
under the 1996 Congressional Review Act (P.L. 104-121, Subtitle E).1 This rule would have
established procedures whereby certain SSA disability beneficiaries could be determined to be too
mentally incompetent to receive or possess firearms or ammunition. These proposed SSA
procedures were parallel, but different from Department of Veterans Affairs (VA) procedures.
Under the vacated rule, SSA disability beneficiaries who were appointed a “representative payee”
to handle their day-to-day affairs and whose disability could be tied to a mental impairment
would have been referred to the Federal Bureau of Investigation (FBI) for inclusion in the
National Instant Criminal Background Check System (NICS). To date, the Biden Administration
has not indicated whether or when a revised rule would be issued. Nevertheless, a revised rule
could raise questions once again about VA procedures, in that, VA determinations are not always
tied to a diagnosed mental impairment.
Since 1998, VA has made similar referrals to the FBI on VA beneficiaries for whom a fiduciary
has been appointed on their behalf to handle their day-to-day affairs. However, VA mental
incompetency determinations are not necessarily tied to any specific mental impairment. Efforts
to reanimate the vacated SSA rule are likely to raise questions about VA procedures and their
implementation. From the 110th through the 115th Congresses, legislation has been acted upon by
the House or Senate, or both, that would have prohibited VA from determining any beneficiary for
whom a fiduciary is appointed, because he or she “lacks the capacity to contract or handle his or
her own affairs,” as “adjudicated as a mental defective” for the purposes of gun control, unless a
magistrate or judicial authority also rules that the beneficiary is a danger to himself or herself or
others. Similar proposals were introduced in the 116th Congress, though they were not acted upon,
and a similar proposal has been introduced in the 117th Congress.
Background
Under the Brady Handgun Violence Prevention Act of 1993 (Brady Act; P.L. 103-159), Congress
required the Attorney General to establish a National Instant Criminal Background Check System
(NICS) within five years of enactment.2 Under the Attorney General’s delegated authority, the
Federal Bureau of Investigation (FBI) established NICS and through this computer system of
systems the permanent background check provisions of the Brady Act became operational on
November 30, 1998.3 Through NICS, federally licensed gun dealers (otherwise known as federal

1 Biden-Harris Presidential Campaign, “The Biden Plan to End Our Gun Violence Epidemic,” at https://joebiden.com/
gunsafety/. See also CRS Report R44752, Gun Control, Mental Incompetency, and Social Security Administration
Final Rule, by William J. Krouse, Scott D. Szymendera, and William R. Morton; and CRS Report R43992, The
Congressional Review Act (CRA): Frequently Asked Questions.
2 P.L. 103-159, November 30, 1993, 107 Stat. 1536. Congress passed the Brady Act after nearly six years of sometimes
contentious debate. As originally introduced in the 100th Congress, the Brady bill (H.R. 975 and S. 466) called for a
seven-day waiting period on handgun transfers. Supporters deemed this waiting period necessary to give law
enforcement officials the time necessary to conduct a thorough background check. Later versions of the bill would have
implemented a five-business-day waiting period. Opponents of the waiting period called for an “instant” computerized
criminal history background check systems as had been implemented in four states (VA, FL, MD, and DE).
3 18 U.S.C. §922(t). See also CRS Report R45970, Gun Control: National Instant Criminal Background Check System
(NICS) Operations and Related Legislation, by William J. Krouse.
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firearms licensees, or FFLs) initiate background checks through NICS on any customers who are
not federally licensed gun dealers, before transferring a firearm to him or her. Through NICS,
such checks query other government computer databases for criminal history and other public
records on an unlicensed customer that could indicate that he or she is ineligible to receive,
possess, ship, or transport a firearm under federal state, local, tribal, or territorial law.4
Under the Brady Act, Congress also authorized the Attorney General to secure from any federal
department or agency information on any person whose receipt or possession of firearms would
violate the Gun Control Act of 1968 (GCA; 18 U.S.C. §§921-931).5 To implement such
information sharing, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
promulgated a regulation and defined the term “adjudicated as a mental defective” to include any
person whom a court, board, commission, or other lawful authority has determined that, as a
result of marked subnormal intelligence, mental illness, incompetency, condition, or disease:
 is a danger to himself or herself, or others;
 lacks the mental capacity to contract or manage his or her own affairs;
 is found insane by a court in a criminal case; or
 is found incompetent to stand trial, or not guilty by reason of lack of mental
responsibility, pursuant to certain provisions of the Uniform Code of Military
Justice.6
Since 1998, VA has provided records to the FBI for inclusion in the NICS index on beneficiaries
for whom a fiduciary (a person selected to manage veteran’s benefits) has been appointed by VA
on his or her behalf. The appointment of a fiduciary is based on a VA determination that the
beneficiary is “mentally incompetent” under VA regulations.7 Based on this VA determination, the
beneficiary is also considered “adjudicated as a mental defective” under the GCA, because he or
she “lacks the mental capacity to contract or handle their own affairs.”8
Under such circumstances, a VA regional office adjudicator notifies the benefits claimant that VA
proposes to “rate” them “mentally incompetent,” at which point the claimant can request a
hearing and submit evidence to the contrary if he or she wishes. VA also advises the beneficiary
regarding his or her right to appeal any final rating regarding the veteran’s ability to receive and
manage his or her own VA benefits.
For a time, however, VA did not always inform the benefits claimant of the consequences of the
mental incompetency determination with regard to his or her firearms eligibility under federal
law. Notwithstanding VA mental incompetency appeals procedures described above, until 2007,

4 Under the Gun Control Act of 1968 (GCA), the “State” includes the District of Columbia, the Commonwealth of
Puerto Rico, and the possessions of the United States (not including the Canal Zone) (see 18 U.S.C. §921(a)(2)). U.S.
territories include American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and the Virgin Islands.
5 P.L. 103-159, Section 103(e). Under the Brady Act, Congress also authorized a federal grant program known as the
National Criminal History Improvement Program (NCHIP) to assist state, local, tribal, and territorial governments
(hereinafter, state and local governments) in making disqualifying records accessible to NICS through existing national
criminal justice information sharing computer networks, or to enter disqualifying records directly into a NICS Index in
cases where there was no pre-existing, nationwide process and infrastructure for such information sharing. NCHIP is
administered by the Bureau of Justice Statistics (BJS) at the Department of Justice’s Office of Justice Programs.
6 U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, “Definitions for the Categories of
Persons Prohibited From Receiving Firearms (95R-051P),” 62 Federal Register 35634-34639, June 27, 1997.
7 38 C.F.R. §3.353(a).
8 18 U.S.C. 922(g)(4) and 27 C.F.R. §478.11.
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avenues of administrative relief by which a VA beneficiary deemed mentally incompetent could
petition to have his or her gun rights restored were narrow, if not nonexistent.
Pursuant to the NICS Improvement Amendments Act of 2007 (NIAA; P.L. 110-180), VA is
required to notify beneficiaries of the ramifications of mental incompetency determinations and a
potential loss of their gun rights. The act also required VA to provide those beneficiaries with an
avenue of administrative relief, by which they could appeal such determinations and have their
rights restored.9 In the 21st Century Cures Act (P.L. 114-255), Congress included provisions that
codified certain VA procedures related to mental incompetency determinations and potential loss
of gun rights.10 Under these provisions, VA must provide a beneficiary with prior notice of a
mental incompetency determination, and provide the beneficiary with an opportunity to request a
hearing with counsel present and submit countervailing evidence from non-VA health
professionals to contest such a determination.
Since 2008, however, the legislative history shows that some Members of Congress have still
viewed VA procedures as inadequate. They particularly take issue with tying firearms ineligibility
under the ATF definition of “adjudicated as a mental defective” solely to an individual’s
incapacity “to contract or manage his [or her] own affairs.” From the 110th through the 114th
Congresses, introduced legislation clarifying the conditions in which veterans can be considered
mentally defective, of which some proposals were reported from committee, passed either the
House or Senate, or both. In the 114th Congress, related amendments were considered, but not
passed, on the Senate floor, when that chamber more broadly considered gun control legislation,
in the wake of mass shootings in December 2015 in San Bernardino, CA, and in June 2016 in
Orlando, FL.11 In the 115th Congress, a measure was passed that vacated a final rule issued by the
Social Security Administration (SSA) that would have established parallel but different
procedures for NICS referrals on Social Security disability programs beneficiaries (P.L. 115-8).12
In the 115th Congress, the House also passed the Veterans 2nd Amendment Protection Act (H.R.
1181). This bill would have clarified the conditions under which veterans and survivors who are
beneficiaries of programs administered by the VA may be treated as “adjudicated as a mental
defective” under the Gun Control Act of 1968 (GCA).13 In the 116th Congress, similar proposals
were introduced (H.R. 3450 and H.R. 3826/S. 4888), but no further action was taken on these
bills. In the 117th Congress, Representative Mike Bost, the ranking minority member on the
Committee on Veterans’ Affairs, has introduced a bill (H.R. 1217) that would similarly prohibit
VA from transmitting information to the Department of Justice (DOJ) for inclusion in NICS
concerning any departmental determination regarding any beneficiary’s eligibility to receive or
possess firearms based only on their fitness to manage their personal finances. Representative
Chip Roy has introduced a similar measure (H.R. 1771).

9 P.L. 110-180; January 8, 2008; 121 Stat. 2559.
10 P.L. 114-255, December 13, 2016; 130 Stat. 1307, codified at 38 U.S.C. §5501A.
11 For further information, see CRS Report R44655, Gun Control: Federal Law and Legislative Action in the 114th
Congress, by William J. Krouse.
12 For further information, see CRS Report R44752, Gun Control, Mental Incompetency, and Social Security
Administration Final Rule, by William J. Krouse, Scott D. Szymendera, and William R. Morton.
13 18 U.S.C. Chapter 44, §921 et seq.
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NICS and Firearms Ineligibility
Through NICS, FFLs initiate a background check by contacting either the FBI or a state or local
agency serving as a point of contact (POC).14 Only FFLs are permitted to use the NICS system,
and a NICS check cannot be initiated until the FFL and intending customer have completely filled
out and signed an ATF Form 4473.15 On this form the intending customer attests that he or she is
not a prohibited person and that he or she are who they say they are. The FFL attests that it has
examined government-issued identification documents, verifying that the intending customer has
completely and properly recorded his or her identity, address, and other biographical information
based on those identification documents. By signing the ATF Form 4473, both the FFL and
intending customer attest that all the information is truthful. Under the GCA, there are criminal
penalties for providing false information on the ATF Form 4473 for both the FFL and the
intending customer.16
Under the GCA, there are nine classes of persons prohibited from shipping, transporting,
receiving, or possessing firearms or ammunition:
 persons convicted in any court of a crime punishable by imprisonment for a term
exceeding one year;
 fugitives from justice;
 unlawful users or addicts of any controlled substance as defined in Section 102 of
the Controlled Substances Act (21 U.S.C. §802);
 persons adjudicated as “mental defective” or committed to mental institutions;
 unauthorized immigrants and nonimmigrant visitors (with exceptions in the latter
case);17

14 See 18 U.S.C. §922(t). The FBI handles background checks entirely for most states, while other states serve as full or
partial points of contact (POCs) for state and local firearms background check purposes. In POC states, federally
licensed gun dealers contact a state agency, and the state agency contacts the FBI for background checks. Thirteen full
POC states include California, Colorado, Connecticut, Florida, Hawaii, Illinois, Nevada, New Jersey, Oregon,
Pennsylvania, Tennessee, Utah, and Virginia. Four partial POC states (for handgun transfers only) include Maryland,
New Hampshire, Washington, and Wisconsin. Three POC states (for handgun permits only) include Iowa, North
Carolina, and Nebraska. All other states are non-POCs.
15 ATF recently revised the ATF Form 4473—Firearms Transaction Record, effective January 16, 2017,
https://www.atf.gov/firearms/atf-form-4473-firearms-transaction-record-revisions.
16 Under 18 U.S.C. §922(a)(6), it is illegal for any person to make any false statement to a FFL with respect to any fact
material to the lawfulness of a prospective firearms transfer. Violations are punishable by up to 10 years of
imprisonment under 18 U.S.C. §924(a)(2).
Under 18 U.S.C. §924(a)(1)(A), it is illegal for any person knowingly to make any false statement with respect to the
records that FFLs are required to maintain under 18 U.S.C. §924(a)(1)(A). Violations are punishable by up to five years
of imprisonment under 18 U.S.C. §924(a)(1)(D).
Under 18 U.S.C. §922(b)(5), it is illegal for an FFL to dispose of a firearm without making entries in records required
to be kept under 18 U.S.C. §923. Violations are punishable by up to five years of imprisonment under 18 U.S.C.
§924(a)(1)(D).
17 Until 2011, ATF interpreted this provision to apply to any noncitizen whose immigration status was “nonimmigrant
alien,” regardless of whether the alien had been required to obtain a visa prior to arrival at a U.S. port of entry. In 2011,
ATF was informed by the DOJ Office of Legal Counsel (OLC) that its interpretation was too broad and that the
prohibition “applies only to nonimmigrant aliens who must have visas to be admitted, not to all aliens with
nonimmigrant status.” See 2011 WL 6260326 (O.L.C) (Oct. 28, 2011). As such, nonimmigrants who enter the country
validly without a visa (e.g., under the Visa Waiver Program) are eligible to purchase firearms and ammunition;
however, those individuals must meet a residency requirement, which requires them to demonstrate that they have “the
intention of making a home” in the state where they wish to purchase the firearm. See 77 Federal Register 33625-
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 persons dishonorably discharged from the U.S. Armed Forces;
 persons who have renounced their U.S. citizenship;
 persons under court-order restraints related to harassing, stalking, or threatening
an intimate partner or child of such intimate partner; and
 persons convicted of a misdemeanor crime of domestic violence.18
In addition, there is a 10th class of persons prohibited from shipping, transporting, or receiving
(but not possessing) firearms or ammunition:
 persons under indictment in any court of a crime punishable by imprisonment for
a term exceeding one year.19
It is also unlawful for any person to sell or otherwise dispose of a firearm or ammunition to any
of the prohibited persons enumerated above, if the transferor (seller, federally licensed or
unlicensed) has reasonable cause to believe that the transferee (buyer) is prohibited from
receiving those items.20
Under the GCA, there is also a provision that allows the Attorney General to consider petitions
from a prohibited person for “relief from disabilities” and have his firearms transfer and
possession eligibility restored.21 Since FY1993, however, a policy rider attached to ATF annual
appropriations for salaries and expenses has prohibited the expenditure of any funding provided
under that account on processing such petitions.22 While a prohibited person arguably could
petition the Attorney General, bypassing ATF, it appears that such an alternative has never been
successfully tested. As a result, the only way a person can reacquire his or her lost firearms
eligibility is to have his or her civil rights restored or disqualifying criminal record(s) expunged
or set aside, or to be pardoned for his crime.23
Mental Incompetency and Firearms Ineligibility
To implement the Brady Act, interagency discussions were held in 1996 and 1997 about who
should be considered “adjudicated as a mental defective” for the purposes of gun control. These
discussions were largely led by the ATF, the agency principally responsible for administering and
enforcing federal gun control laws. On June 27, 1997, the ATF promulgated a final rule defining
the following terms:
“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 a mental illness, incompetency, condition, or disease, (1) is a danger to
himself or others, or (2) lacks the mental capacity to contract or manage his own affairs.

33634 (June 7, 2012).
18 18 U.S.C. §922(g).
19 18 U.S.C. §922(n).
20 18 U.S.C. §922(d).
21 18 U.S.C. §925(c). See also Relief from Disabilities Under the Act, 27 C.F.R. §478.144.
22 For FY1993, see P.L. 102-393; 106 Stat. 1732 (1992). For FY2016, see P.L. 114-113; 129 Stat. 2242, 2302
(December 18, 2015). The FY2016 limitation provides: “That none of the funds appropriated herein shall be available
to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. §925(c).”
23 Notwithstanding the appropriations limitation on this GCA provision, this avenue of discretionary relief probably
would not have been available to VA beneficiaries who had a fiduciary appointed on their behalf, and thus were
referred by the VA to the FBI NICS Index as mentally incompetent.
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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. Sections 850a, 876(b).
“Committed to a mental institution” means a formal commitment of a person to a mental
institution by a court, board, commission, or other lawful authority. The term includes
commitments: (1) to a mental institution involuntarily; (2) for mental defectiveness or
mental illness; or (3) for other reasons, such as drug use. The term does not include a person
who is admitted to a mental institution for observation or who is voluntarily admitted.
“Mental institution” includes mental health facilities, mental hospitals, sanitariums,
psychiatric facilities, and other facilities that provide diagnoses by licensed professionals
of mental retardation or mental illness, including psychiatric wards in general hospitals.24
In its final rule, ATF noted that VA had commented on the proposed rulemaking and had
“correctly interpreted” the proposed definition of “adjudicated as a mental defective” to include
persons who , have been determined to be “mentally incompetent” by the Veterans Benefits
Administration (VBA).25 In a proposed rulemaking, the ATF opined that the inclusion of
“mentally incompetent” VA beneficiaries in the definition of “adjudicated as a mental defective,”
under the clause that a beneficiary “lacks the mental capacity to contract or handle his [or her]
own affairs,” was wholly consistent with the legislative history of the GCA.26 In compliance with
the GCA, as amended by the Brady Act, and the ATF definition of “adjudicated as a mental
defective,” VBA provided the FBI with disqualifying records on 88,898 VA beneficiaries for the
November 1998 implementation of NICS.
Under VA procedures, 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.27 After 1998 these beneficiaries also fell under the definition of “adjudicated as a mental
defective” under the administrative definition promulgated by ATF described above.
Traditionally, VA had used such determinations of mental incompetence as a basis for appointing
a fiduciary to receive and manage a beneficiary’s VA benefits. According to VA, during the
determination process beneficiaries were notified that VA proposed to rate them “incompetent”
and that they were able to request a hearing and submit evidence to the contrary if they wished.
VA also advised these beneficiaries regarding their right to appeal any final rating regarding their
ability to receive and manage their own VA benefits.28 VA, however, did not necessarily inform a
beneficiary that he or she would lose his or her gun rights as a consequence of a VA determination
of mental incompetency. Nor were the beneficiaries informed of the subsequent VA referrals to
NICS.
The Veterans Health Administration (VHA) has not, with any known frequency, submitted any
disqualifying records on VA medical care recipients to the FBI for inclusion in the NICS index for
any medical/psychiatric reason such as post-traumatic stress disorder (PTSD). If a veteran has
been declared by a court to be incompetent and the veteran is admitted to a hospital for treatment
or observation the VA adjudicator should request records from the hospital to evaluate the
veteran’s competency and issue a final rating decision. If the veteran is admitted to a VA facility

24 Federal Register, vol. 62, no. 124, June 27, 1997, p. 34634.
25 Ibid., p. 34637.
26 Ibid.
27 See 38 C.F.R. §3.353 and Federal Register, vol. 61, no. 174, September 6, 1996, p. 47095.
28 38 C.F.R. § 3.353(e).
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for treatment, VHA does not make a related referral about the veteran’s ineligibility to the FBI.29
Instead, the state in which the court resides may submit the disqualifying record to the FBI, if
such a submission would be appropriate and permissible under state law.30
Nevertheless, the decision by 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 2000.31 Critics of this policy underscored that veterans routinely consented to “mentally
incompetent” determinations so that a fiduciary could be appointed for them without any warning
from VA that by doing so, they would lose their firearms eligibility. Those critics contended that
to take away a veteran’s Second Amendment rights without his foreknowledge was improper.32 At
that time, they also pointed out that no other federal agencies were providing similar
disqualifying records to the FBI. VA spokespersons countered that they were required by law [the
Brady Act] to provide those records to FBI and that VA’s process for making mental
incompetency determinations was not “haphazard.”33
NICS Improvement Amendments Act of 2007
In April 2007, a lone assailant armed with two pistols shot to death 32 individuals and nonfatally
wounded another 17, before shooting himself to death at Virginia Tech in Blacksburg, VA. Due to
his disturbing on-campus behavior, the assailant had previously been evaluated by health care
professionals and ordered by a judge to undergo “outpatient” mental health treatment, because he
was deemed to be a threat to himself or others. At that time, however, Virginia state law only
referred the subjects of “inpatient” court orders for such treatment to the FBI for inclusion in the
NICS index. Following this mass shooting, the Virginia governor, now-Senator Timothy Kaine,
reviewed the state statute and determined that henceforward subjects of either court-ordered
inpatient or outpatient mental health care under such circumstances would be referred to the FBI
for inclusion in the NICS index.34
In response to the Virginia Tech mass shooting, Congress passed the NICS Improvement
Amendments Act of 2007 (NIAA).35 This act included provisions designed to encourage states to
make available to the Attorney General certain records related to persons who are disqualified
from acquiring firearms, particularly disqualifying records related to mental health adjudications,
as well as domestic violence misdemeanor convictions and restraining orders. To accomplish this,
the act established a framework of incentives and disincentives whereby the Attorney General is
authorized to either waive a grant match requirement or reduce a law enforcement assistance

29 CRS has attempted to identify a rationale for the different policies applied by VHA and VBA in this situation, but
has not located any public information.
30 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.
31 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.
32 Ibid.
33 Ibid.
34 For further information, see Mass Shootings at Virginia Tech, April 16, 2007: Report of the Virginia Tech Review
Panel Presented to Timothy M. Kaine, Governor, Commonwealth of Virginia, August 2007, 147 pp.
35 P.L. 110-180, January 8, 2008; 121 Stat. 2559.
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grant depending upon a state’s compliance with the act’s goals of bringing such firearms-related
disqualifying records online.
Among some gun rights advocates, however, opposition to the NIAA arose based on the assertion
that, under these amendments, any veteran who was or had been diagnosed with PTSD and was
found to be a “danger to himself or others would have his gun rights taken away ... forever.”36
Members of Congress included a provision in NIAA that required agencies to inform a claimant
beforehand that they could lose their gun rights and privileges if they are found to be mentally
incompetent as a condition of a benefit program’s administration and eligibility. In addition, as
under the state grant provisions, NIAA required those referring agencies to establish a firearms
disabilities relief program, whereby any individual referred to the NICS index for reasons related
to mental incompetency would be able to petition to have his or her gun rights and privileges
restored, if and when he or she had overcome the incapacities that led to the initial finding.
The Bureau of Justice Statistics (BJS) has awarded $155.6 million in NICS improvement grants
to state and local governments from FY2009 through FY2020.37 According to the BJS, there were
298,571 prohibiting records related to persons “adjudicated as a mental defective” or “committed
[involuntarily] to a mental institution” in the NICS index as of January 1, 2007.38 Of those
records, state and local authorities had contributed 159,418 records (53.4%).39 According to the
FBI, there were 6,396,842 active prohibiting records on persons “adjudicated as a mental
defective” or “committed [involuntarily] to a mental institution” in the NICS index as of
December 31, 2020.40 Of those records, state and local authorities had contributed 6,133,617
records (95.9%).41 From the beginning of 2007 to the end of 2020, the number of those records
contributed by state and local authorities to the NICS index increased by 3,747.5%.
Federal agencies had contributed 263,225 such records to the NICS index, of which VA had
contributed 258,225 (98.1%), as of December 31, 2020.42 By comparison, federal agencies had
contributed 139,153 records to the NICS index as of January 1, 2007, the bulk of which were
contributed by VA.43 The December 2016 SSA final rule established a similar program to VA’s;

36 Larry Pratt, “Veterans Disarmament Act to Bar Vets from Owning Guns,” PrisonPlanet.com, September 23, 2007,
http://www.prisonplanet.com/articles/september2007/230907Disarmament.htm.
37 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, “NICS Act Record Improvement
Program (NARIP) Awards FY 2009-2016,” https://www.bjs.gov/index.cfm?ty=tp&tid=491#funding. Over the last 22
fiscal years (FY1995-FY2016), Congress appropriated nearly $772.8 million for NCHIP, or an annual average of $35.1
million. The initial goal of NCHIP was to improve electronic access to firearms-related disqualifying records,
particularly felony indictment and conviction records. In the last three fiscal years, not less than $62.0 million of
NCHIP funding was set aside for purposes authorized under the NICS Improvement Amendments Act of 2007 (NIAA;
P.L. 110-180). Over the five years (FY2009-FY2013), Congress appropriated an additional $63.6 million for purposes
authorized under NIAA, under a grant program that the BJS designated the NICS Amendments Record Improvement
Program (NARIP). The goal of NARIP is to improve electronic access to disqualifying records on persons “adjudicated
as a mental defective,” convicted of a domestic violence misdemeanor, or subject to a domestic violence restraining
order. BJS administers both NCHIP and NARIP.
38 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Background Checks for Firearm
Transfers, 2007—Statistical Tables, July 16, 2008, Table 9, https://www.bjs.gov/index.cfm?ty=pbdetail&iid=682.
39 Ibid.
40 U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services (CJIS) Division,
National Instant Criminal Background Check System (NICS) Section, Active Records in the NICS Index as of
December 31, 2020, pp. 2 and 3, https://www.fbi.gov/file-repository/active-records-in-the-nics-indices-by-state.pdf/
view.
41 Ibid.
42 Ibid.
43 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Background Checks for Firearm
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however, the SSA had not referred any disqualifying records to the FBI for inclusion in NICS
index before the 115th Congress passed legislation and vacated the rule under the Congressional
Review Act.44 As noted above, during his 2020 campaign for the Presidency, then-candidate
Biden indicated that he supported revising and reissuing this vacated SSA final rule.45
NIAA Requirements for Federal Departments and
Agencies
NIAA included several provisions that address the submission of disqualifying records by federal
departments and agencies to the FBI for inclusion in NICS.
Attorney General’s Authority to Secure Records
NIAA (P.L. 110-180) amends the Brady Handgun Violence Prevention Act46 to strengthen the
Attorney General’s authority to secure from any department or agency of the U.S. government
information on persons who are prohibited from possessing or receiving a firearm under federal
or state law.47 The Brady Act, as amended by NIAA, requires those departments or agencies to (1)
“furnish electronic versions” of that information quarterly; (2) update, correct, modify, or remove
those records as required to maintain their timeliness, if those records are stored in any databases
that are maintained or made available to the Attorney General, and (3) inform the Attorney
General of any record changes so NICS could also be updated to reflect those changes.
Furthermore, the act requires the Attorney General to submit to Congress an annual report on the
compliance of each U.S. department or agency that possesses such disqualifying records.48
Record Accuracy and Confidentiality
NIAA requires the Attorney General to ensure that any information submitted or maintained in
NICS be kept accurate and confidential and that obsolete and erroneous names be removed from
NICS and destroyed in a timely manner.49 NIAA also requires the Attorney General to work with
the states to develop computer systems that would electronically notify the Attorney General
when a court order has been issued, lifted, or otherwise removed, or when a person has been
adjudicated as mentally defective or committed to a mental institution.

Transfers, 2007—Statistical Tables, July 16, 2008, Table 9, https://www.bjs.gov/index.cfm?ty=pbdetail&iid=682.
44 P.L. 115-8, February 28, 2017, 131 Stat. 15. For further information, see CRS Report R44752, Gun Control, Mental
Incompetency, and Social Security Administration Final Rule, by William J. Krouse, Scott D. Szymendera, and
William R. Morton.
45 “The Biden Plan to End Our Gun Violence Epidemic,” https://joebiden.com/gunsafety/.
46 P.L. 103-159, Section 103(e).
47 Section 101(a) of P.L. 110-180.
48 For a list of federal departments and agencies that make NICS referrals, see U.S. Department of Justice, Federal
Bureau of Investigation, Criminal Justice Information Services (CJIS) Division, National Instant Criminal Background
Check System (NICS) Section, Active Records in the NICS Index as of December 31, 2016, p. 6, https://www.fbi.gov/
file-repository/active-records-in-the-nics-index-by-state.pdf/view.
49 Section 101(b)(2) of P.L. 110-180.
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Records Prohibited from Inclusion in NICS
NIAA prohibits any department or agency of the U.S. government from providing the Attorney
General with any record regarding the mental health of a person, or any commitment of a person
to a mental institution, if (1) the adjudication or commitment has been set aside or expunged, or
the person has otherwise been fully released or discharged from all mandatory treatment,
supervision, or monitoring; (2) the person in question has been found by a court, board,
commission or other lawful authority to no longer suffer from a mental health condition; or (3)
the adjudication or commitment is based solely on a medical finding of disability, without an
opportunity for hearing by a court, board, or other lawful authority, and the person has not been
“adjudicated as a mental defective.”50
Relief from Mental Defective Disability
NIAA requires further that each department or agency of the U.S. government that makes
adjudications related to the mental health of a person that impinges upon eligibility to possess or
receive firearms to establish a process by which a person who is the subject of such an
adjudication or determination could apply for relief from that disability.51 (In this sense, the
disability is the person’s ineligibility to transfer or possess a firearm under 18 U.S.C. §922(d)(4)
or (g)(4).) The act requires further that applications for disability relief be processed not later than
365 days after receipt, and if the agency fails to resolve an application within 365 days for any
reason (including a lack of appropriated funds), the application is deemed to have been resolved,
triggering de novo judicial review.52
In addition, administrative “relief and review” provided under NIAA (subparagraph 101(c)(2)(B))
that would allow a prohibited beneficiary to petition to have his or her guns rights restored is
required to be made available according to standards outlined in 18 U.S.C. section 925(c).53 For
persons who are granted relief from disability under the act, or who are the subject of mental
health records that the act prohibits from being turned over to the Attorney General, the
underlying events that were the basis for those records are deemed not to have occurred for the
purposes of determining firearms transfer and possession eligibility under federal law.
Notice of Firearms Eligibility Loss and Disability Relief
NIAA requires any federal department or agency that conducts proceedings to adjudicate a person
as a mental defective to provide both oral and written notice of the following to the benefits
claimant at the beginning of the adjudication process:

50 Section 101(c)(1) of P.L. 110-180.
51 Subparagraph 101(c)(2)(A) of P.L. 110-180.
52 De novo review is a standard of review used by a court to rule on evidence and matters of law without giving
deference to a lower court’s legal conclusions or findings. As of December 2016, 32 states have established
administrative relief programs to comply with the grant eligibility provisions of P.L. 110-180.
53 Subparagraph 101(c)(2)(B) of P.L. 110-180. Under 18 U.S.C. §925(c), the Attorney General is allowed to consider
petitions from a prohibited person for “relief from disabilities” and have his firearms transfer and possession eligibility
restored. Since FY1993, however, a rider on the ATF annual appropriations for salaries and expenses has prohibited the
expenditure of any funding provided under that account on processing such petitions. For FY1993, see P.L. 102-393;
106 Stat. 1732 (1992). For FY2015, see P.L. 113-235, 128 Stat. 2187 (2014).
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 that persons “adjudicated as a mental defective” are prohibited from purchasing,
possessing, receiving, shipping or transporting a firearm or ammunition under
federal law;
 what the penalties are for violating related federal firearms provisions; and
 what relief from such disability with respect to firearms is available under federal
law.54
VA Implementation of Brady Act and NIAA
As noted above, VA has contributed the bulk of the federal records in the NICS index related to
individuals who have been “adjudicated as a mental defective.” Hence, VA and its policies are
one example of federal implementation of the Brady Act, as amended by NIAA. Under current
VA regulations, VA has the authority to determine the competency status of a person receiving VA
benefits.55 VA may appoint a fiduciary to receive benefits on behalf of a beneficiary determined to
be mentally incompetent. In addition, VA is to refer the name of any beneficiary determined to be
mentally incompetent to the FBI for inclusion in the NICS index.56
Individuals Who Have Their Names Reported to NICS
VA is to report the names of all beneficiaries determined to be mentally incompetent to the FBI
for inclusion in the NICS. VA’s regulations define a “mentally incompetent person” as
one who because of injury or disease lacks the mental capacity to contract or to manage his
or her own affairs, including disbursement of funds without limitation.57
This regulatory definition of a “mentally incompetent person” does not include any consideration
of whether the person is considered to have a propensity for violence or is considered a threat to
himself or herself or others. Thus, for example, a veteran who during the determination process
for Veterans Disability Compensation (VDC) indicates that because of a traumatic brain injury he
is experiencing some short-term memory loss which affects his ability to manage his finances,
could be determined to be “mentally incompetent” even if there is no evidence that this veteran’s
condition would impair his ability to safely own or handle a firearm or that he is a threat to
himself or others.
When making a determination as to the mental competency of a beneficiary, the regulations
require that VA only make a determination of mental incompetency if either
 the medical evidence is clear, convincing, and leaves no doubt as to the
beneficiary’s incompetency; or

54 Paragraph 101(c)(3) of P.L. 110-180.
55 38 C.F.R. §3.353.
56 The authority for VA to refer the names of beneficiaries determined to be incompetent to the FBI for inclusion in the
NICS is not explicitly provided for in VA regulations. However, it is described in Department of Veterans Affairs,
M21-1 Adjudication Procedures Manual, Section III.v.9.B.4.a., https://www.knowva.ebenefits.va.gov/system/
templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014276/M21-
1-Part-III-Subpart-v-Chapter-9-Section-B-Processing-Awards-to-Incompetent-Beneficiaries?query=NICS#4.
57 38 C.F.R. §3.353(a).
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 there is a definite expression regarding the beneficiary’s incompetency by
responsible medical authorities.58
In addition, the regulations provide that if there is reasonable doubt as to the incompetency of the
beneficiary, the beneficiary will be determined to be competent.59
How Are Affected Individuals Notified by VA and What
Information Is Provided?
Federal regulations require that VA notify a beneficiary about the agency’s proposed
determination of mental incompetency.60 It is the policy of VA that both this notice, as well as the
notice of the final determination of mental incompetency, include information on the impact of an
incompetency decision on the beneficiary’s right to purchase, possess, receive, or transport a
firearm or ammunition.61
How Do Affected Individuals Have Their Records Removed from
NICS?
Beneficiaries who have had their names submitted by VA to the FBI for inclusion in the NICS
index due to determinations of mental incompetency may contest both the determination and the
inclusion of their names in the NICS index. VA’s determination of incompetency is subject to the
same due process and appeals procedures as other VA decisions.62 For the purposes of a
determination of mental incompetency, this includes the following procedures provided in
regulation and codified in statute pursuant to Section 14017 of the 21st Century Cures Act:
 notice by VA to the beneficiary of the proposed determination and supporting
evidence;
 the opportunity for the beneficiary to request a hearing;
 the opportunity for the beneficiary to present evidence, including the opinion of a
medical professional or other person, as to the beneficiary’s capacity to manage
his or her benefits; and
 the opportunity to be represented by counsel, at no cost to the federal
government, and bring a medical professional or other person to provide
testimony at any hearing.63
A beneficiary dissatisfied by VA’s decision regarding his or her mental competency has the right
to a hearing before the Board of Veterans Appeals (BVA) and the right of judicial review of the
BVA’s decision by the U.S. Court of Appeals for Veterans Claims. Decisions of the U.S. Court of
Appeals for Veterans Claims may be appealed to the U.S. Court of Appeals for the Federal
Circuit.

58 38 C.F.R. §3.353(c).
59 38 C.F.R. §3.353(d).
60 38 C.F.R. §3.353(e).
61 Department of Veterans Affairs, M21-1 Adjudication Procedures Manual, Section III.v.9.B.4.b.
62 38 C.F.R. §§3.103 and 3.353(e).
63 P.L. 114-255, December 13, 2016; 130 Stat. 1307; codified at 38 U.S.C. §5501A.
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In addition to contesting or appealing the determination of incompetency, a beneficiary may
separately seek relief from VA’s decision to report his or her name to the FBI for inclusion in the
NICS index. Because VA’s decision to report a beneficiary to the FBI for inclusion in the NICS
index is not considered a decision by the agency on a benefit provided by law, VA does not have a
duty to assist the beneficiary with the request for relief; burden of proof is on the beneficiary
requesting relief; and failure to meet the burden of proof is sufficient cause for the request for
relief to be denied.64
When deciding whether or not to grant a veteran’s request for relief, VA must consider the
following types of evidence:
 a current statement from the beneficiary’s primary mental health physician that
assesses the beneficiary’s current and past mental health status; and
 evidence concerning the beneficiary’s reputation.65
VA must deny a request for relief if there is clear and convincing evidence that the beneficiary
would be a danger to himself or herself or others if the relief was granted.66 If such evidence does
not exist, VA must consider granting the request for relief.67 In order to grant relief, there must be
clear and convincing evidence that affirmatively, substantially, and specifically, shows that
 the beneficiary is not likely to act in a manner that is dangerous to the public; and
 granting relief will not be contrary to the public interest.68
A decision by VA to deny relief cannot be appealed to the BVA or U.S. Court of Appeals for
Veterans Claims, but is subject to judicial review by a U.S. District Court.69
NICS Transactions, Background Checks, and
Mental Incompetency Denials
The FBI posts monthly NICS transaction and NICS Section denials (by prohibiting category) on
its website; however, it does not collate nor post denials for POC states and other state and local
authorities conducting firearms-related background checks facilitated through NICS for
concealed carry permits and other purposes. DOJ’s BJS surveys these state and local authorities
and reports periodically on total background checks and denials.
From December 1998 to 2017, the FBI facilitated over 278.5 million NICS transactions. POC
states and other state and local authorities accounted for 158 million of these transactions, which
corresponded with 100 million background checks and 1.7 million denials (1.7%). (Some state
and local background checks involve more than one transaction.)70 The FBI NICS Section

64 Department of Veterans Affairs, M21-1 Adjudication Procedures Manual, Section III.v.9.B.4.c. Federal law at 38
U.S.C. §5103A requires the VA to assist claimants in obtaining evidence necessary to substantiate their claims for VA
benefits.
65 Department of Veterans Affairs, M21-1 Adjudication Procedures Manual, Section III.v.9.B.4.h.
66 Ibid., Section III.v.9.B.4.i.
67 Ibid., Section III.v.9.B.4.j.
68 Ibid.
69 Ibid., Section III.v.9.B.4.g.
70 For the FBI NICS Section, a single background check usually involves a single NICS transaction. For state and local
agencies serving as POCs, however, a single background check sometimes involves more than one NICS transaction.
The FBI reports checks and denials made by the NICS Section on a monthly basis. The FBI also reports NICS
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handled 120.4 million transactions and an equal number of background checks, of which nearly
1.5 million resulted in denials (1.2%). In summation, total NICS transactions for this time period
amounted to over 220.5 million background checks for either firearms transfers or state-issued
licenses and permits and resulted in over 3.2 million initial denials (1.5%).
Some NICS Section denials were later overturned on appeal. Over these years, for example,
22.7% of denials by the NICS Section were appealed and 11.3% of those appealed denials were
overturned.71 Of NICS Section denials for any reason, 33,155 were based on mental health-
related involuntary commitments or adjudications, or 2.2% of total denials for those years.72
Table 1. Mental Incompetency Denials for Firearm Transfers and Permits
By Type of Checking Agency (1997-2007, 2007, 2016, and 2017)
All Checking

Agencies
FBI
State
Local
1997-2007
1.4%
0.5%
1.9%
4.2%
2007
2.0%
0.8%
3.0%
4.4%
2016
5.3%
4.7%
5.8%
7.0%
2017
6.4%
5.9%
6.9%
6.6%
Source: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Background Checks for
Firearm Transfers, 2007–Statistical Tables, Tables 2 and 4; and Background Checks for Firearm Transfers, 2016-2017,
February 2021, NCJ 254757, pp. 10 and 11, https://www.bjs.gov/index.cfm?ty=tp&tid=4.
BJS reports on denials made by state and local authorities, but the reported data are not always
robust enough to collate total denials made by those authorities based on mental incompetency
determinations. Nonetheless, BJS reported the percentage of total denials attributed to mental
incompetency for 2016 and 2017. As shown in Table 1, the annual percentage of firearm transfer
and permit denials has increased from markedly from 1997 to 2007 and 2007 to 2016 and 2017.73
For 2019 and 2018, the FBI facilitated 28.4 million and 26.2 million transactions, respectively,
bringing total NICS transactions to 333 million. For 2019, the FBI reported that its NICS Section
processed 8.2 million checks, 103,592 of which resulted in a denial (1.27%).74 The FBI also

transactions made by state and local agencies serving as POCs on a monthly basis, but it does not report the
corresponding NICS checks and denials made by those POCs. Under the direction of BJS, NICS transaction data are
analyzed and checks and denials made by state and local agencies serving as POCs are reported, but there is a one-to-
two-year lag in that reporting. For example, BJS released the most recent NICS statistics for both the FBI NICS Section
and the state and local agencies serving as POCs in June 2016 for calendar years 2013 and 2014. See U.S. Department
of Justice, Office of Justice Programs, Bureau of Justice Statistics, Background Checks for Firearm Transfers, 2013-
2014 Statistical Tables, by Jennifer C. Karberg, Ronald J. Frandsen, Joseph M. Durso, Trent D. Buskirk, and Allina D.
Lee, June 2016, NCJ249849, 28 pp.
71 Data on appeals made by state and local agencies serving as POCs and estimates based on state surveys conducted by
BJS are much more fragmentary, but suggest that the percentage of those overturned denials is higher than for the FBI.
72 U.S. Department of Justice, Federal Bureau of Investigation, National Instant Criminal Background Check System
(NICS) Operations, 2017, pp. 12, 17, and 21, https://www.fbi.gov/file-repository/2017-nics-operations-report.pdf/view.
73 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Background Checks for Firearm
Transfers, 2007–Statistical Tables, Tables 2 and 4; and Background Checks for Firearm Transfers, 2016-2017,
February 2021, NCJ 254757, pp. 10 and 11, https://www.bjs.gov/index.cfm?ty=tp&tid=4.
74 U.S. Department of Justice, Federal Bureau of Investigation, https://www.fbi.gov/services/cjis/nics#Reports-
%20Statistics.
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reported that 207,421 checks were not resolved (2.5%), a percentage consistent with prior years.75
From December 1998 to 2020, the FBI has facilitated 372.7 million NICS transactions. The FBI
facilitated a record 39.7 million transactions in 2020, a 40% increase over 2019.
Legislation in the 114th Congress
Between 2008 and 2014, the Senate and the House both acted on proposals that would prohibit
VA from finding a veteran or other beneficiary to be “mentally incompetent” and thus a “mental
defective” for the purposes of gun control, unless such a finding were made by a judge,
magistrate, or other judicial authority based upon a finding that the beneficiary posed a danger to
himself or others.
During the 114th Congress, the Senate considered several amendments that addressed gun control,
mental incompetency, and or veterans’ benefits following the December 2015 San Bernardino,
CA, and June 2016 Orlando, FL, mass shootings. Although the Senate blocked all these
amendments on procedural grounds, Congress included a provision in an enacted bill that
addressed VA procedures.76 Discussion of similar legislation considered in the 110th through the
113th Congresses is included in an Appendix to this report.
Manchin-Toomey Amendment
On December 3, 2015, during Senate consideration of the Restoring Americans’ Healthcare
Freedom Reconciliation Act (H.R. 3762), Senators Joe Manchin and Patrick Toomey offered an
amendment (S.Amdt. 2908) that would have amended veterans law to prohibit VA from turning
records of veterans or other beneficiaries, who had been determined mentally incompetent, over
to the FBI for inclusion in the NICS index, unless certain notification and review conditions were
met.77 Under the amendment, the Secretary of Veterans Affairs first would have been required to
provide to a beneficiary, notification that included (a) the determination made by the Secretary;
(b) a description of the implications of such a determination upon one’s firearms eligibility under
federal law; and (c) the right to request review by the board that would have been established by
VA or a court of competent jurisdiction.
If enacted, within 180 days, the Manchin-Toomey amendment would have required the Secretary
of Veterans Affairs to establish a board to review, upon request by a VA beneficiary, whether the
individual’s status as mentally incompetent for the purpose of receiving benefits prevented him or
her from possessing firearms under the GCA. Under the Manchin-Toomey provision, the board
would have considered the individual’s honorable discharge or decoration in determining whether
he or she “cannot safely use, carry, possess, or store firearms due to mental incompetency.” A
beneficiary who wanted to contest a determination from the board could do so through judicial
review in federal court. It appears that until this review process was complete, a person would not
have been considered “adjudicated as a mental defective” for purposes of firearms eligibility. As
such, it appears that the Secretary, by implication, would not have been permitted to make a NICS
referral during this period of time.

75 U.S. Department of Justice, Federal Bureau of Investigations, National Instant Criminal Background Check System
(NICS) Operations, 2019, pp. 22, https://www.fbi.gov/file-repository/2019-nics-operations-report.pdf/view.
76 For further information, see CRS Report R44655, Gun Control: Federal Law and Legislative Action in the 114th
Congress, by William J. Krouse.
77 As described in the Appendix to this report, the Senate previously considered the Manchin-Toomey amendment
(S.Amdt. 715 to S. 649, 113th Congress) following the Newtown, CT, mass public shooting in April 2013. For further
information, see also CRS Report R42987, Gun Control Legislation in the 113th Congress, by William J. Krouse.
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If a beneficiary did not request review by a board or court of competent jurisdiction within 30
days after initial notification from the Secretary, then the beneficiary who was to be determined
mentally incompetent would have been considered “adjudicated as a mental defective” for
purposes of the GCA. This suggests that the Secretary would not have been able to make a NICS
referral until the 30-day period had passed.
For VA beneficiaries who had already been considered “adjudicated as a mental defective,” the
Manchin-Toomey amendment would have required the Secretary to provide, within 90 days of
enactment, written notice to these individuals of the opportunity for administrative review and
appeal, as would have been established by the amendment. Furthermore, the amendment would
have also required the Secretary to review and revise all policies and procedures whereby
beneficiaries are determined to be mentally incompetent, so that any individual “who is
competent to manage his own financial affairs, including receipt of Federal benefits, but who
voluntarily turns over the management thereof to a fiduciary is not” considered “adjudicated
mentally defective” for purposes of the GCA. Within 30 days of conducting this review, the
Secretary would have been required to submit to Congress a report detailing the results of the
review and any resulting policy and procedural changes. The Senate blocked this amendment on
procedural grounds.
On June 15, 2016, Senator Manchin submitted a nearly identical amendment (S.Amdt. 4716)
during consideration of the FY2017 Departments of Commerce and Justice, Science, and Related
Agencies (CJS) Appropriations bill (H.R. 2578, the expected vehicle for S. 2837); however, the
amendment was not brought to a vote. Also, in the 114th Congress, Representatives Peter King
and Mike Thompson introduced a measure, the Public Safety and Second Amendment Rights
Protection Act of 2015 (H.R. 1217), which was nearly identical to the Manchin-Toomey
amendment.
Murphy Amendment
On June 16, 2016, by comparison, during Senate consideration of the Departments of Commerce
and Justice, Science, and Related Agencies Appropriations Bill, 2017 (H.R. 2578, the expected
vehicle for S. 2837), Senator Christopher Murphy offered an amendment (S.Amdt. 4750) that
would have codified the ATF current regulatory definition of “adjudicated as a mental
defective.”78 The Senate blocked this amendment on procedural grounds.
Grassley Amendments
In the 114th Congress, Senator Charles Grassley offered amendments (S.Amdt. 2914 and S.Amdt.
4751) during consideration of H.R. 3762 and H.R. 2578, respectively. These amendments would
have amended the GCA and replaced the term “adjudicated as a mental defective” with the term
“mentally incompetent” in both 18 U.S.C. Section 922(d) and (g). In addition, these amendments
would have amended the GCA to define the terms “has been adjudicated mentally incompetent or
has been committed to a psychiatric hospital,” “order or finding,” and “psychiatric hospital.”
These definitions and other language would have narrowed the scope of whose records, and under
what circumstances, a federal or state agency could refer to the FBI for inclusion in the NICS
index mental defective file. The Senate blocked this amendment on procedural grounds.

78 The Murphy amendment reflects language previously included in a proposal introduced by Sen. Chuck Schumer (S.
2934, Fix Gun Checks Act of 2016) and Rep. Jackie Speier (S. 2934 and H.R. 3411, Fix Gun Checks Act of 2015) in
the 114th Congress.
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In addition, during the 114th Congress, Senator Grassley submitted an amendment (S.Amdt. 4120)
during consideration of the National Defense Authorization Act for Fiscal Year 2017 (S. 2943).
This amendment would have prohibited the VA Secretary from making a NICS referral to the FBI
on any person as “adjudicated as a 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.” This amendment was not brought to a vote.
P.L. 114-255 Provision
In December 2016, Congress included a provision in the 21st Century Cures Act that codified
elements of VA’s implementation of NIAA.79 Section 14017 of this act amended 38 U.S.C. with a
new section, 5501A, prohibiting the VA Secretary from making certain determinations of mental
competency about VA benefits claimants, unless the claimant is
 notified of the proposed adverse determination and the supporting evidence;
 provided an opportunity to request a hearing to address such a proposed adverse
determination;
 given the opportunity to present evidence, including an opinion from a medical
professional or other person, on his or her capacity to manage his or her own
monetary benefits paid to or for him or her by the Secretary under this title; and
 given the opportunity to be represented by counsel at a hearing and to bring a
medical professional or other person to provide relevant testimony at any such
hearing at no expense to the government.
In short, this provision gave benefit claimants the ability to present evidence from their own
health care providers and have counsel present during an administrative hearing to contest a
determination of mental incompetency by VA.
Related Congressional Action in the 115th Congress
During the 115th Congress, the House passed a bill that would have required VA to modify its
procedures with regard to referrals of VA beneficiaries, who were determined to be mentally
incompetent and, thus, how records on those individuals are referred to the FBI for inclusion in
NICS. The 115th Congress saw the enactment of two laws related to NICS and the referral of
disqualifying records to the FBI for the purposes of gun control. The first vacated a related SSA
final rule that would have established similar, but different procedures for the referral of disability
insurance beneficiaries to the FBI. The second reauthorized federal grant programs that encourage
states to provide the FBI with disqualifying records related to mental health commitments and
adjudications, as well as domestic violence-related misdemeanor convictions and restraining
orders.
House-Passed Veterans 2nd Amendment Protection Act (H.R. 1181)
On March 10, 2017, the House Committee on Veterans’ Affairs reported the Veterans 2nd
Amendment Protection Act (H.R. 1181; H.Rept. 115-33). Introduced by Representative David P.

79 P.L. 114-255, December 13, 2016; 130 Stat. 1307; codified at 38 U.S.C. §5501A. For further information, see CRS
Report R44718, The Helping Families in Mental Health Crisis Reform Act of 2016 (Division B of P.L. 114-255),
coordinated by Erin Bagalman.
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Roe, then-Chair of the House Committee on Veterans’ Affairs, H.R. 1181 would have clarified the
conditions under which veterans and survivors who are beneficiaries of programs administered by
VA may be treated as “adjudicated as a mental defective” under the Gun Control Act of 1968
(GCA).80 On March 16, 2017, the House passed H.R. 1181 by a recorded vote: 240 to 175 (Roll
no. 169).
Under H.R. 1181, VA would have been prohibited from determining any beneficiary for whom a
fiduciary is appointed as “adjudicated as a mental defective” for the purposes of a referral to
NICS, because he or she lacks the mental capacity to contract or handle his or her own affairs,
unless a magistrate or judicial authority also rules that the beneficiary is a danger to himself or
herself or others. Members of the House of Representatives made several arguments for and
against H.R. 1181.81 The discussion below reflects the House floor debate on H.R. 1181 on March
16, 2017.
Supporters of H.R. 1181 maintained that the existing VA benefit claims and disability rating
procedures were not substantive enough on their own to justify the taking of a constitutionally
enumerated right like the right to keep and bear arms under the Second Amendment. Supporters
of H.R. 1181 underscored that VA procedures are unbalanced, because the VA merely has to show
that the beneficiary is “mentally incompetent” because he or she lacks the mental capacity to
contract or handle his or her own affairs; yet, to regain his or her Second Amendment rights, the
beneficiary must demonstrate to VA that he or she is not a threat to himself or herself, or others.
In other words, the bar for the beneficiary to regain his or her gun rights is much higher than for
the initial VA mental incompetency determination.
Opponents of H.R. 1181 countered that VA has complied with the Brady Act and NIAA and that
public safety is enhanced by its NICS referrals to the FBI. Opponents note that Congress
seconded VA procedures by codifying them in P.L. 114-255. They contended that the VA
procedures act to protect VA beneficiaries from the harm that might result if they acquired
firearms and used them improperly due to reasons possibly related to their mental incompetency.
To support this argument, they pointed to two factors: the gun-related suicide rate among veterans
and the number of seriously mentally ill among VA beneficiaries who have been determined to be
mentally incompetent.82 Some opponents of H.R. 1181 also contended that the bill’s provisions
are retrospective, meaning VA and FBI would be required to remove all existing VA referrals
from NICS, possibly allowing seriously mentally ill VA beneficiaries to have future access to
firearms.
Supporters of H.R. 1181 agreed that there could be VA beneficiaries who have been determined to
be mentally incompetent who are also seriously mentally ill, but they maintained that the bill’s
provisions were only prospective. For future determinations and NICS referrals, however,
supporters of H.R. 1181 maintained that even seriously mentally ill beneficiaries would need to

80 18 U.S.C. Chapter 44, §921 et seq.
81 Veterans 2nd Amendment Act, Congressional Record, daily edition, vol. 163 (March 16, 2017), pp. H2102-2114.
82 During House debate on H.R. 1181, Rep. Elizabeth Esty cited statistics that out of 170,000 beneficiaries in 2015 who
were deemed mentally incompetent, 20,000 were diagnosed with schizophrenia, over 11,000 with dementia, and 5,000
with Alzheimer’s disease. Several Members, including Rep. Esty, observed that the VA has reported that about 20
veterans per day commit suicide and that compared to other suicide victims nationwide a disproportionate share of
those veterans commit suicide with a firearm. Ibid., pp. H2104 and H2106-H2107. According to the VA, about two-
thirds of veterans who committed suicide in 2014 did so with a firearm. For further information on veterans and
suicide, see U.S. Department of Veterans’ Affairs, VA Suicide Prevention Program: Facts About Veteran Suicide, July
2016, https://www.va.gov/opa/publications/factsheets/
Suicide_Prevention_FactSheet_New_VA_Stats_070616_1400.pdf.
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be found a danger to themselves or others based on a ruling by a magistrate or other judicial
authority. They argued further that the existing VA procedures stigmatize the mentally ill
disproportionately as perpetrators of criminal violence, when some research indicates that the
mentally ill are more likely to be the victims of crime.83
If enacted, H.R. 1181 might have raised several oversight issues for Congress because the
Attorney General would have still been required to secure prohibiting records from federal
departments and agencies under the Brady Act and NIAA. For example, would VA have been
obligated to establish an administrative process whereby beneficiaries who lacked the mental
capacity to contract or handle their day-to-day affairs would also be evaluated to determine
whether they were a danger to themselves or others? If the bill’s provisions were retrospective,
would VA have been obligated to cull through its existing NICS referrals to determine who
among those beneficiaries should have their cases placed before a “magistrate or judicial
authority” based on the grounds that they likely pose a danger to themselves or others? What
precedent and expectations would have the enactment of H.R. 1181 set for SSA and any other
federal agencies that provide disability benefits?
Final SSA Rule Vacated by Congress (P.L. 115-8)
In the wake of the December 2012 Newtown, CT, mass shooting,84 DOJ issued guidance to
agencies regarding the identification and sharing of relevant federal records and their submission
to the NICS index. DOJ later determined that SSA must report to the Attorney General
information about certain Social Security and Supplemental Security Income (SSI) beneficiaries
for whom a representative payee was appointed because they were determined by SSA to be
unable to manage their benefits due to a mental impairment.
SSA issued a notice of proposed rulemaking concerning its implementation of the NIAA on May
5, 2016,85 and published its final rule on December 19, 2016.86 The final rule specified the
conditions under which SSA would have reported for inclusion in the NICS index a Social
Security or SSI disability beneficiary’s disqualifying records. The rule also outlined SSA’s
process for notifying affected individuals as well as the administrative appeals process under
which such individuals would have requested relief from the federal firearms prohibitions. The
final rule became effective on January 18, 2017; however, compliance would not have been
required until December 19, 2017.87
In addition, the ATF issued proposed regulations to clarify further individuals who might fall
under this definition. This proposed regulation has not been made final.88 It is significant to note

83 Liza Gold and Robert I. Simon, Gun Violence and Mental Illness, American Psychiatric Association Publishing,
2016, Introduction, p. XXIV.
84 On December 14, 2012, in Newtown, CT, a 20-year-old male entered Sandy Hook Elementary School and shot 20 1st
graders and 6 adult staff members to death. He also shot his mother to death. For further information, see Report of the
State’s Attorney for the Judicial District of Danbury on the Shootings at Sandy Hook Elementary School and 36
Yogananda Street, Newtown, Connecticut on December 14, 2012, November 25, 2013, 116 pp.
85 Social Security Administration (SSA), “Implementation of the NICS Improvement Amendments Act of 2007,” 81
Federal Register 27059, May 5, 2016.
86 SSA, “Implementation of the NICS Improvement Amendments Act of 2007,” 81 Federal Register 91702, December
19, 2016.
87 See 20 C.F.R. §§421.100-421.170.
88 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives, “Amended Definition of
‘Adjudicated as a Mental Defective’ and ‘Committed to a Mental Institution’ (2010R-21P),” 79 Federal Register 774,
January 7, 2014.
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that the NICS index is not intended to be a registry of all individuals diagnosed with a mental
illness. Nonetheless, the subsequent legislative history shows that some Members of Congress
have long taken issue with the ATF interpretation of the term “adjudicated as a mental
defective.”89
On February 2, 2017, the House of Representatives passed a Congressional Review Act
disapproval resolution (H.J.Res. 40) to overturn a final rule promulgated by the SSA regarding
implementation of firearms restrictions for certain persons.90 The House joint resolution passed
by recorded vote: 235-180 (Roll no. 77). The joint resolution also bars SSA from promulgating
any rule in the future that would be “substantially the same” as the disapproved rule unless the
agency received a new statutory authorization to do so. On February 15, 2017, the Senate passed
the House disapproval resolution (H.J.Res. 40) by a recorded vote: 57-43 (Roll no. 66). On
February 28, 2017, then-President Donald Trump signed this resolution into law (P.L. 115-8)
effectively vacating the SSA final rule.
Fix NICS Act of 2018 (P.L. 115-141)
Congress passed the Fix NICS Act of 2018 (P.L. 115-141, Title VI) and revised NIAA grant
incentives and accountability measures to improve state and tribal management of, and
accessibility to, criminal history record information and other firearms-related prohibiting
records. To these ends, Congress reauthorized the NICS Amendments Record Improvement
Program (NARIP) and appropriations for that program ($125 million annually for FY2018
through FY2022), and the National Criminal History Improvement Programs (NCHIP) and
appropriations for that program ($250 million annually for FY2018 through FY2022). Grant
eligibility for either program is based on state and tribal authorities formulating (with the
Attorney General) implementation plans and, then, complying with those plans, which are to be
designed to achieve the objectives of the Brady Act, NIAA, and the Fix NICS Act.
Similarly, Congress required federal agencies to formulate implementation plans for complying
with federal reporting requirements that direct them to provide the FBI with access to any
firearms-related prohibiting records for NICS-facilitated background checks. Federal agencies are
also required to certify semi-annually that they are complying with these laws and submitting all
prohibiting records on at least a quarterly basis to the FBI. Political appointees within a federal
department or agency that fail to comply with these federal requirements and underlying
implementation could forfeit bonus pay. The Attorney General is required to report semiannually
to Congress and the public on federal agencies and states that fail to either create or obtain
substantial compliance with their implementation plans.91

89 In the 110th, 111th, 112th, and 113th Congresses, either the Senate or House, or both, acted on bills that would have
prohibited the VA from finding a veteran or other beneficiary to be “mentally incompetent” and thus a “mental
defective” for the purposes of gun control, unless such a finding were made by a judge, magistrate, or other judicial
authority based upon a finding that the beneficiary posed a danger to himself or others. None of these bills were
enacted. For further information, see CRS Report R42987, Gun Control Legislation in the 113th Congress, by William
J. Krouse.
90 For further information, see CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked
Questions, by Maeve P. Carey and Christopher M. Davis.
Also, see Social Security Administration, “Implementation of the NICS Improvement Amendments Act of 2007,” 81
Federal Register 91702-91715, December 19, 2016.
91 For the most recent report, see U.S. Department of Justice, Attorney General’s Semiannual Report on the Fix NICS
Act, August 2020, https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjl8qim-
uDyAhXwGVkFHW4mBrIQFnoECBMQAQ&url=
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In addition, Congress amended a provision of the Brady Act that allows a denied person to submit
to the Attorney General information to correct, clarify, or supplement records accessible to NICS
that were the basis for a denial. Upon receipt, the Attorney General is required to consider the
submitted information immediately, investigate the matter further and correct all erroneous
federal records relating to the prospective transferee, and give notice of the error to any federal
department or agency or any state that was the source of such erroneous records. The amendment
further requires the Attorney General to make such determinations about whether the denied
person is the subject of an erroneous record and remove any erroneous records within 60 days of
receipt of such information.92
Possible Issues for Congress
Prior to the Brady Act, there were no systematic, nationwide efforts to collect electronic records
at the federal level on persons “adjudicated as a mental defective” or “committed to a mental
institution” for the purposes of gun control. Hence, to more fully implement the Brady Act and
develop NICS, efforts were made to acquire records on such persons from federal departments
and agencies, as well as state and local governments. To advance these efforts, the ATF
promulgated a regulation defining the term, “adjudicated as a mental defective.” As discussed
above, this definition was developed in consultation with the VA, and was reviewed by then-
Attorney General Janet Reno’s Department of Justice. The existing VA benefit claims and
disability ratings procedures for making “mental incompetency” determinations based on the
need to appoint a fiduciary for a beneficiary were deemed substantive enough to consider a
person “adjudicated as a mental defective” under the GCA. During the FBI’s initial rollout of
NICS, the SSA reviewed its procedures and decided they were not substantive enough to justify
making mental incompetency determinations for the purposes of gun control. In the wake of the
December 2012 Newtown, CT mass shooting, however, the White House under then-President
Barack Obama and then-Attorney Generals, Eric Holder and Loretta Lynch, directed the SSA to
reconsider that decision.
Congress, meanwhile, passed the 21st Century Cures Act (P.L. 114-255) in the last days of the
114th Congress. As described above, this law included provisions that codified VA procedures
related to mental incompetency determinations and potential loss of gun rights that Congress
required under NIAA. Some observers view the codification of VA procedures as a congressional
endorsement of those procedures. They argue that post-NIAA VA procedures strike the correct
balance between protecting mentally incompetent VA beneficiaries from the harm they might do
themselves, and protecting the public from the harm they might do to others, while protecting
their rights under the Second Amendment.
In December 2016, the SSA published a final rule that would have established similar, but slightly
different, procedures for certain disability compensation beneficiaries. The SSA rule would have
not only based the mental incompetence determination on an inability to handle one’s day-to-day
affairs, but would have also tied that determination to certain diagnosed mental impairments. In
addition, the SSA rule would have also placed lower and upper age limits on those determinations
for the purposes of NICS referrals.93 Consequently, the SSA final rule would not have been as

https%3A%2F%2Fwww.justice.gov%2Farchives%2Fag%2Fpage%2Ffile%2F1303171%2Fdownload&usg=
AOvVaw19x14LsMfh8UTtusGAWuTy.
92 34 U.S.C. §40901, as amended.
93 Under the now vacated SSA final rule, NICS referrals would not have been made for beneficiaries under the age 18
years or over Social Security’s full retirement age (currently 66 years). Under the Obama Administration, ATF
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inclusive as VA benefit claims and disability rating procedures, possibly calling into question
whether VA procedures were overly inclusive. Nonetheless, the SSA final rule did not address
whether such beneficiaries also demonstrated that they were a danger to themselves or others. As
noted above, under the Congressional Review Act, Congress passed a bill that vacated that SSA
final rule in the early days of the 115th Congress (P.L. 115-8).
In past Congresses, supporters of the Veterans 2nd Amendment Protection Act and similar
proposals have maintained that they believe that the existing VA benefit claims and ratings
procedures are not substantive enough to justify taking a person’s gun rights, calling into question
where, when, how, and by whom would it be appropriate to make mental incompetency
determinations for the purposes of gun control. Nevertheless, VA could still be obligated under
the Brady Act to make mental competency determinations with regard to firearms eligibility for
the purposes of public safety as part of its benefit claims and disability ratings procedures. If so,
would VA be required to establish new policies and procedures, under which cases for final
mental incompetency determinations for the purposes of gun control would be placed before a
“magistrate or judicial official”? In addition, if the provisions of the Veterans 2nd Amendment
Protection Act were retrospective, could VA also be required to cull through all its active NICS
referrals and submit administrative cases against some, but not all, of those beneficiaries to a
“magistrate or judicial official” on the grounds that they could be a threat to themselves or others?
These circumstances also call into question what obligations the SSA might still have, if any,
under the GCA in light of the vacated final rule, or a reissued rule under the Biden
Administration, and the possible enactment of the Veterans 2nd Amendment Protection Act.
Should the VA and SSA place such mental incompetency determination cases for the purposes of
gun control before the same adjudicative body? Would they have parallel administrative
processes, and common adjudicative bodies that handle similar mental incompetency cases? Or
would the VA and SSA have separate processes and adjudicative bodies? Or would they take
those cases to state and local magistrates and judicial officials to adjudicate?
Another set of questions relates to whether other federal departments and agencies, such as, for
example, agencies of the Department of Health and Human Services, ought to be contributing
records to NICS on mentally incompetent beneficiaries who potentially pose a danger to
themselves or others. For example, how would those departments and agencies handle mental
incompetency determinations for the purposes of gun control? It is unclear what either set of
requirements, the existing VA procedures or the possible enactment of the Veterans 2nd
Amendment Protection Act could mean for state and local governments that have submitted, or
would submit, records on persons deemed too mentally incompetent to be trusted with a firearm.
If VA procedures stand or the Veterans 2nd Amendment Protection Act is enacted, the Attorney
General might be called to set expectations in terms of guidance for state and local governments,
especially absent any state laws governing the referral of such records to the FBI for inclusion on
the NICS index. For now, there appears to be a lack of consensus about the type and severity of
mental incompetence or mental illness that ought to be the basis for including a prohibiting record
on an individual in a nationwide information sharing platform like the NICS index for the
purposes of gun control.

considered whether a lower bound age limit ought to be promulgated in a proposed rule, but it made no specific
proposal with regard to such an age limit in that rule, which has not been finalized. U.S. Department of Justice, Bureau
of Alcohol, Tobacco, Firearms, and Explosives, “Amended Definition of ‘Adjudicated as a Mental Defective’ and
‘Committed to a Mental Institution’ (2010R-21P),” 79 Federal Register 774, January 7, 2014.
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Appendix. Legislative History 110th-113th Congresses
Proposals similar to H.R. 1217, introduced in the 117th Congress, and H.R. 1181, passed by the
House in the 115th Congress, also saw significant legislative action from the 110th through the
113th Congresses (2007-2014).
110th Congress
In the 110th Congress, Senator Richard Burr first introduced the Veterans’ 2nd Amendment
Protection Act (S. 3167). This bill 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.” Later, Senator Burr successfully offered similar language as an amendment to the
Veterans’ Medical Personnel Recruitment and Retention Act of 2008 (S. 2969) that included
similar language, during Committee on Veterans’ Affairs markup of that bill on June 26, 2008.
However, Senate leadership did not bring S. 2969 to the floor for further consideration.
111th Congress
In the 111th Congress, Senator Burr reintroduced his proposal (S. 669) to change the effect that
being determined mentally incompetent has on one’s eligibility to possess or purchase a firearm
under federal law. The Senate Veterans’ Affairs Committee reported this stand-alone bill on June
16, 2009 (S.Rept. 111-27), which included the following assessment:
Under a Memorandum of Understanding entered into between the FBI and VA, VA agreed
to make available for inclusion on the NICS database information about VA beneficiaries
who are determined to be mentally incompetent on account of their inability to contract or
manage their own affairs pursuant to part 3.353 of title 38, Code of Federal Regulations.
Determinations of incompetency under part 3.353 result in an appointment of a fiduciary.
The evidence gathered to support a finding of incompetency, under part 3.353 of VA’s
regulations, is used to inform a judgment about whether a beneficiary is capable of
managing their VA benefit payments. No evidence is gathered as part of this process to
inform a judgment about whether a beneficiary presents a danger to themselves or others,
or whether they should be prohibited from purchasing, possessing, or operating a firearm.
Furthermore, although beneficiaries are entitled to a hearing once notified that it is
proposed they will be determined incompetent, the initial hearing is before VA personnel,
not an independent authority. From the date of the initial request of the Attorney General
through October, 2007, VA has shared information with NICS on over 116,000 individuals
for whom it has appointed a fiduciary. VA was unable to provide the Committee with
updated information about how many additional names have been added or removed from
NICS since October 2007. Despite the fact that other agencies, such as the Social Security
Administration, appoint fiduciaries to manage benefit payments for their beneficiaries in a
manner similar to VA’s process, VA beneficiaries constitute the overwhelming majority of
individuals referred to the FBI by the Federal government.94
However, Senate leadership did not bring S. 669 to the floor for further consideration.

94 U.S. Congress, Senate Committee on Veterans’ Affairs, Veterans’ 2nd Amendment Protection Act, 111th Cong., 1st
sess., June 16, 2009, pp. 2-4.
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The House Veterans’ Affairs Committee considered and approved a similar proposal that
Representative John Boozman offered as an amendment to a draft bill—the Veterans Benefits and
Economic Welfare Improvements Act of 2010—in full committee markup on September 15,
2010. The Boozman amendment was included in the reported version of the bill (H.R. 6132;
H.Rept. 111-630), which included the following passage:
The Committee agrees that there is a non sequitur in rationale under current law in
assuming that simply because a veteran, or other beneficiary, needs to have a fiduciary
appointed, then the veteran is mentally defective and should go on the NICS list. The NICS
Improvement Amendments Act of 2007, P.L. 110-180 (121 Stat. 2559), allows those
veterans whose names are given to NICS to appeal the action to the agency that made the
decision.
However, when the House considered H.R. 6132 under suspension of the rules, the version of the
bill that was called up did not include the Boozman amendment. Representative Jerry Moran
introduced a similar bill (H.R. 2547), but no further action was taken on that measure.
112th Congress
In the 112th Congress, the House reconsidered the issue of veterans, mental incompetency, and
firearms eligibility, and passed a bill, but it was not enacted. On May 13, 2011, Representative
Denny Rehberg introduced the Veterans 2nd Amendment Protection Act (H.R. 1898). This bill
would have prohibited VA from determining a beneficiary to be mentally incompetent for the
purposes of gun control, unless such a determination were made by a judge, magistrate, or other
judicial authority based upon a finding that the beneficiary posed a danger to himself or others.
On July 22, 2011, the House Committee on Veterans’ Affairs Subcommittee on Disability
Assistance and Memorial Affairs marked up and reported the Veterans’ Benefits Training
Improvement Act of 2011 (H.R. 2349). During markup, Representative Denny Rehberg
successfully offered language that was nearly identical to H.R. 1898 as an amendment to H.R.
2349. On October 6, 2011, the full committee reported this bill (H.Rept. 112-241), which
included the following paragraphs:
Testimony submitted by the Reserve Officers Association (ROA) in connection with the
Subcommittee on Disability Assistance and Memorial Affairs hearing on July 7, 2011,
pointed out the risks of VA assigning labels through an administrative process to those who
have served in the military, which only serve to inflame the public’s distrust of the mental
capacity of those same individuals. In this case, VA’s designation of veterans appointed a
fiduciary as ‘‘mentally incompetent’’ automatically attaches to it a placement on the NICS
list, a list filled with criminals and others who have demonstrated through their actions that
they present a danger to society. The GCA process [that the] VA has been directed to follow
unfairly labels veterans as potentially dangerous without appropriate due process.
The Committee is in absolute agreement that individuals who are a danger to themselves
or others should not be permitted to own or possess a firearm. However, the Committee is
deeply troubled with what appears to be an arbitrary and discriminatory process that allows
a non-judicial authority to presume individuals seeking help from VA as threats to society
when they may only need help managing their financial affairs. The Committee believes a
rational process, in an appropriate forum, is an absolute necessity before Constitutional
rights are abridged for any American, but especially America’s veterans.95
On October 11, 2011, the House considered and passed H.R. 2349 by a voice vote with the
Rehberg amendment. Senator Burr subsequently reintroduced his bill (S. 1707)—the Veterans

95 U.S. Congress, House Committee on Veterans’ Affairs, Veterans Benefits Act of 2011, 112th Cong., 1st sess., October
6, 2011, pp. 14-15.
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Second Amendment Protection Act—on October 13, 2011, but no further action was taken on this
bill.
113th Congress
In the 113th Congress, on May 8, 2013, the House Committee on Veterans’ Affairs approved the
Veterans 2nd Amendment Protection Act (H.R. 602), by voice vote. Under H.R. 602, a person who
is a beneficiary of VA disability compensation and pension programs, who is mentally
incapacitated, deemed mentally incompetent, or experiencing an extended loss of consciousness
could not be considered “adjudicated as a mental defective” for the purposes of federal firearms
eligibility determinations, 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.
H.R. 602 was introduced by Representative Jeff Miller. An identical bill (H.R. 577) was
introduced by Representative Steve Stockman.
Senator Burr reintroduced his bill (S. 572), which was identical to the two House proposals. On
June 12, 2013, in testimony before the Senate Committee on Veterans’ Affairs voiced its
opposition to S. 572 and, by implication, to H.R. 602:
The bill would, in effect, exclude VA determinations of incompetency from the coverage
of the Brady Handgun Violence Prevention Act. VA does not support this bill.
VA determinations of mental incompetency are based generally on whether a person,
because of injury or disease, lacks the mental capacity to manage his or her own financial
affairs. We believe adequate protections can be provided to these Veterans under current
statutory authority. Under the [National Instant Criminal Background Check System]
NICS Improvement Amendments Act of 2007, individuals whom VA has determined to
be incompetent can have their firearms rights restored in two ways: First, a person who has
been adjudicated by VA as unable to manage his or her own affairs can reopen the issue
based on new evidence and have the determination reversed. When this occurs, VA is
obligated to notify the Department of Justice to remove the individual’s name from the
roster of those barred from possessing and purchasing firearms. Second, even if a person
remains adjudicated incompetent by VA for purposes of handling his or her own finances,
he or she is entitled to petition VA to have firearms rights restored on the basis that the
individual poses no threat to public safety. VA has relief procedures in place, and we are
fully committed to continuing to conduct these procedures in a timely and effective manner
to fully protect the rights of our beneficiaries.
Also, the reliance on an administrative incompetency determination as a basis for
prohibiting an individual from possessing or obtaining firearms under Federal law is not
unique to VA or Veterans. Under the applicable Federal regulations implementing the
Brady Handgun Violence Prevention Act, any person determined by a lawful authority to
lack the mental capacity to manage his or her own affairs is subject to the same prohibition.
By exempting certain VA mental health determinations that would otherwise prohibit a
person from possessing or obtaining firearms under Federal law, the bill would create a
different standard for Veterans and their survivors than that applicable to the rest of the
population and could raise public safety issues.96
During Senate consideration of the Safe Communities, Safe Schools Act of 2013 (S. 649),
language regarding veterans and firearms was included in amendments offered by Senators Joe

96 U.S. Department of Veterans Affairs, written statement of Curtis L. Coy, Deputy Under Secretary for Economic
Opportunity, Veterans Benefits, presented to the Senate Committee on Veterans’ Affairs, June 12, 2013, available at
http://www.veterans.senate.gov/hearings.cfm?action=release.display&release_id=6d839502-3b01-4a1f-9dd2-
6292724455a0.
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Manchin and Patrick Toomey, Senator Charles Grassley, and Senator Burr. The Senate rejected
these amendments, and a final vote was not taken on S. 649.
Senator Burr’s amendment was identical to his bill (S. 572) and the House-reported bill (H.R.
602) described above. While similar in spirit, the Manchin-Toomey amendment would have
established more specific requirements than the amendment offered by Senator Burr (S.Amdt.
720), which is identical to Senator Burr’s bill (S. 572), and the House-reported bill (H.R. 602).
The Burr amendment was rejected by a recorded vote: 56-44 (Record Vote Number: 102).
Under the Manchin-Toomey amendment (S.Amdt. 715), the VA Secretary first would have been
required to provide to a beneficiary, who has been deemed mentally incompetent for VA
purposes, notification that includes (a) the determination made by the Secretary; (b) a description
of the implications of such a determination upon one’s firearms eligibility under federal law; and
(c) the right to request review by the board that would be established by the VA or a court of
competent jurisdiction. The Manchin-Toomey amendment was rejected by a recorded vote: 54-46
(Record Vote Number: 97).97
Alternatively, the Grassley amendment (S.Amdt. 725), commonly referred to as the “GOP
substitute,” would have substituted the term “mentally incompetent” in both 18 U.S.C. §922(d)
and (g), in lieu of “adjudicated as a mental defective,” and would have amended the GCA to
define “has been adjudicated mentally incompetent or has been committed to a psychiatric
hospital,” “order or finding,” and “psychiatric hospital.” These definitions and other language
would have arguably narrowed the scope of whom, and under what circumstances, a federal
agency like VA could refer a record on an individual to the FBI for inclusion in the NICS index
mental defective file. If enacted, this amendment might have required VA to revise its policies and
procedures with regard to NICS referrals, because a narrower scope of mentally incompetent
veterans would have probably fallen under this definition than does today under the current
mental defective definition. It is also questionable whether the amendment would have had wide
effect on state procedures, because a thorough, published review and comparison of state NICS
referral procedures on mentally incompetent persons has not been conducted by DOJ or any other
federal agency. Arguably, few states, if any, have adopted administrative procedures that would
match the scope of VA administrative procedures with regard to mental incompetency and NICS
referrals. The Grassley GOP substitute amendment was rejected by a recorded vote: 52-48
(Record Vote Number: 98).

97 For a more detailed description of the Manchin-Toomey Amendment, see discussion in “Legislation in the 114th
Congress” in the main body of this report. The language in the Manchin-Toomey amendment in the 113th Congress
(S.Amdt. 715) is identical to the Manchin-Toomey amendments in the 114th Congress (S.Amdt. 2908 and S.Amdt.
4716).
Congressional Research Service

26

Gun Control, Veterans Benefits, and Mental Incompetency Determinations

Author Information

William J. Krouse
Heather M. Salazar
Specialist in Domestic Security and Crime Policy
Analyst in Veterans Policy

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Congressional Research Service
R44818 · VERSION 4 · UPDATED
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