29–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 113–159 

VETERANS 2ND AMENDMENT PROTECTION ACT 

JULY 19, 2013.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. MILLER of Florida, from the Committee on Veterans’ Affairs, 

submitted the following 

R E P O R T 

[To accompany H.R. 602] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Veterans’ Affairs, to whom was referred the 

bill (H.R. 602) to amend title 38, United States Code, to clarify the 

conditions under which certain persons may be treated as adjudicated mentally incompetent for certain purposes, having considered the same, report favorably thereon without amendment and 

recommend that the bill do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 2 

Background and Need for Legislation .................................................................... 2 

Hearings ................................................................................................................... 4 

Subcommittee Consideration .................................................................................. 5 

Committee Consideration ........................................................................................ 5 

Committee Votes ...................................................................................................... 5 

Committee Oversight Findings ............................................................................... 5 

Statement of General Performance Goals and Objectives .................................... 5 

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 5 

Earmarks and Tax and Tariff Benefits .................................................................. 5 

Committee Cost Estimate ....................................................................................... 6 

Congressional Budget Office Estimate ................................................................... 6 

Federal Mandates Statement ................................................................................. 7 

Advisory Committee Statement .............................................................................. 7 

Statement of Constitutional Authority .................................................................. 7 

Applicability to Legislative Branch ........................................................................ 7 

Statement on Duplication of Federal Programs .................................................... 7 

Disclosure of Directed Rulemaking ........................................................................ 7 

Section-by-Section Analysis of the Legislation ...................................................... 7 

Changes in Existing Law Made by the Bill, as Reported ..................................... 8 


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PURPOSE AND SUMMARY

H.R. 602 was introduced on February 8, 2013, by Representative 

Jeff Miller of Florida. H.R. 602 would amend title 38 to require an 

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

that a person assigned a fiduciary is a danger to himself, herself 

or others before such a person is adjudicated as a mental defective 

under Section 922 of title 18, United States Code. 

BACKGROUND AND NEED FOR LEGISLATION

Section 1. Short title 

The Veterans 2nd Amendment Protection Act 

Section 2. Conditions for treatment of certain persons as adjudicated mentally incompetent for certain purposes 

Section 2 of H.R 602 addresses an inequitable penalty that is applied under the guise of federal law solely, and disparately, to veterans who are appointed fiduciaries for management of financial 

affairs. Specifically, federal laws as relate to the acquiring, possessing, and transporting of firearms have evolved in recent decades, and an improper effect has resulted exclusively to the nation’s veterans. 

Over 40 years ago, the Federal Gun Control Act of 1968 (GCA), 

Public Law 90–618, 82 Stat. 1213, and subsequent amendments, 

established categories of persons who are prohibited from receiving 

or possessing firearms. Included among the categories is any person who has been ‘‘adjudicated as a mental defective or who has 

been committed to a mental institution.’’ (Ibid., 82 Stat. 1213, 

1220). Part 478.11 of title 27, Code of Federal Regulations, defines 

‘‘adjudicated as a mental defective’’ as: 

(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: 

(1) Is a danger to himself or to others; or 

(2) Lacks the mental capacity to contract or manage his own 

affairs. 

38 C.F.R. § 3.353(a) defines ‘‘mental incompetency.’’ A mentally 

incompetent person is 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. 

Twenty-five years later, the Brady Handgun Violence Prevention 

Act of 1993 (Brady Act), Public Law 103–159, 107 Stat. 1536, required the Attorney General to establish a system to assist federally licensed gun dealers in determining whether a gun buyer is 

prohibited under the GCA from purchasing a firearm. The system 

developed pursuant to the Brady Act, the National Instant Criminal Background Check System (NICS), is a computerized database 

operated by the Federal Bureau of Investigation (FBI) NICS Section. The NICS can be queried by gun dealers to determine whether the name of a prospective buyer is on the list and, therefore, legally prohibited from purchasing a firearm. 

The Brady Act also required Federal agencies, upon the request 

of the Attorney General, to submit to the FBI information on persons prohibited from purchasing a firearm. The Attorney General 

made such a request to VA in 1998. Under a Memorandum of UnVerDate Mar 15 2010 11:30 Jul 22, 2013 Jkt 029006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\HR159.XXX HR159

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derstanding 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 as determined under 38 C.F.R. § 3.353. Once a determination of incompetency is made under part 3.353, VA appoints a fiduciary for the beneficiary. 

The evidence gathered to support a finding of incompetency, 

under 38 C.F.R. § 3.353, is used to inform a judgment about whether a beneficiary has the capacity ‘‘to contract or to manage his or 

her own affairs, including disbursement of funds without limitation.’’ There is no current requirement to gather evidence or information regarding 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 a fiduciary 

will be appointed for them, the initial hearing is before VA personnel, not an independent authority. 

From the date of the initial 1998 request of the Attorney General, through April, 2013, VA has shared information with NICS on 

over 143,000 individuals for whom it has appointed a fiduciary. Despite the fact that other agencies, such as the Social Security Administration (SSA), appoint fiduciaries to manage benefit payments 

for their beneficiaries in a manner similar to VA’s process, a similar reporting to NICS does not occur. VA beneficiaries constitute 

the overwhelming majority of individuals referred to the FBI by the 

Federal Government. 

The purpose of the VA fiduciary program is to protect veterans 

who are unable to manage their VA benefits. It is a system designed to assist veterans who are determined unable to manage 

their finances. Ultimately, the government appoints a third party 

to assist the veteran beneficiary in financial matters. 

The Social Security Administration provides a comparison with 

its ‘‘representative payee’’ program. According to the Social Security Administration, each legally incompetent adult must be appointed a ‘‘representative payee,’’ or fiduciary, who is responsible 

for using the beneficiary’s benefits to pay for the current and foreseeable needs of the beneficiary and to properly save any benefits 

not needed to meet current needs. Again, the government appoints 

a third party to assist the beneficiary in financial matters. 

However, there is a difference in effect of the fiduciary program 

as applied to a veteran beneficiary as opposed to a Social Security 

beneficiary; the veteran beneficiary, who served this nation honorably and who is receiving benefits earned, is referred to the Federal 

Bureau of Investigation and is placed on the NICS list; the Social 

Security beneficiary is not placed on the NICS list. 

H.R. 602 is intended to remedy this disparate treatment and to 

ensure that there is a specific determination that a veteran is a 

‘‘danger to himself or herself or others’’ by a ‘‘judge, magistrate, or 

other judicial authority of competent jurisdiction’’ before the veteran is determined to have been ‘‘adjudicated as a mental defective’’ under the operation of section 922 of title 38, United States 

Code. 

The Committee believes that a determination that a veteran cannot handle financial affairs is not a determination that they are a 


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danger to themselves or to the public and hence should be prohibited from purchasing or possessing firearms. Since such a determination implicates a specific right granted under the Constitution, 

the Committee believes that a specific determination is required. 

VA has noted that, under the NICS Improvement Amendments 

Act of 2007, individuals whom VA has determined to be incompetent can have their firearms rights restored in two ways. VA first 

notes that a veteran 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. However, a veteran may very well need 

assistance with finances and it may be in the veteran’s best interest to maintain a fiduciary for that purpose. 

Again, the Committee finds that a determination of incompetency 

regarding financial matters is not a finding of incompetence in all 

aspects of a veterans’ life, although this is the manner in which 

current law and regulations operate. The Committee believes that 

this approach is overly broad and not narrowly tailored to address 

specific concerns that would merit a denial of rights accorded under 

the Constitution. 

Next, VA states that even if a veteran 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. 

This is also an unacceptable remedy for several reasons. First, this 

appellate hearing is held before VA personnel and not before an 

independent authority. Second, the practical implication of this 

structure is the immediate abridgement of a veteran’s constitutional right; then, the veteran is forced to appeal a matter that was 

never decided in the first instance, namely whether the veteran is 

a threat to public or personal safety. As of April, 2013, with over 

143,000 subject veterans, VA has granted only seven requests for 

relief from NICS reporting. This can hardly be advertised as an effective means to safeguard veterans’ constitutional rights. 

H.R. 602 prohibits disparate treatment of veterans by requiring 

a standard used elsewhere in the Federal government, such as the 

fiduciary program conducted by the Social Security Administration. 

HEARINGS

On April 16, 2013, the Subcommittee on Disability Assistance 

and Memorial Affairs conducted a legislative hearing on various 

bills introduced during the 113th Congress, including H.R. 602. 

The following witnesses testified at the hearing: 

The Honorable Bill Johnson, U.S. House of Representatives; The 

Honorable Chellie Pingree, U.S. House of Representatives; The 

Honorable Timothy Walz, U.S. House of Representatives; Mr. Jeff 

Hall, Assistant National Legislative Director, Disabled American 

Veterans; Mr. Raymond Kelley, Director of National Legislative 

Service, Veterans of Foreign Wars; Colonel Robert F. Norton, USA 

(Ret.), Deputy Director of Government Relations, Military Officers 

Association of America; Heather Ansley, Esq., MSW, Vice President 

of Veterans Policy, VetsFirst, a program of United Spinal Association; Mr. Michael D. Murphy, Executive Director, National AssociaVerDate Mar 15 2010 11:30 Jul 22, 2013 Jkt 029006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR159.XXX HR159

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tion of County Veterans Service Officers; Mr. Richard Hipolit, Assistant General Counsel, U.S. Department of Veterans Affairs; Mr. 

David R. McLenachen, Director, Pension and Fiduciary Service, 

U.S. Department of Veterans Affairs, accompanied by Ms. Mary 

Ann Flynn, Deputy Director, Policy and Procedures, Compensation 

Service, U.S. Department of Veterans Affairs. The following groups 

submitted statements for the record: The American Legion; Iraq 

and Afghanistan Veterans of America; National Organization of 

Veterans Advocates; and Wounded Warrior Project. 

SUBCOMMITTEE CONSIDERATION

The Subcommittee on Disability Assistance and Memorial Affairs 

did not consider H.R. 602 in an open markup session. 

COMMITTEE CONSIDERATION

On May 8, 2013, the full Committee met in an open markup session, a quorum being present, and ordered H.R. 602 reported favorably to the House of Representatives, by voice vote. 

COMMITTEE VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee to list the recorded votes on the motion to report the legislation and amendments thereto. There were 

no recorded votes taken on amendments or in connection with ordering H.R 602 reported to the full House. A motion by Representative Doug Lamborn of Colorado to order H.R. 602 reported favorably to the full House was agreed to by voice vote. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII and clause (2)(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

descriptive portions of this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the Rules of the 

House of Representatives, the Committee’s performance goals and 

objectives are reflected in the descriptive portions of this report. 

NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX

EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee adopts as its own the estimate of new budget authority, entitlement authority, or tax expenditures or revenues contained in the cost estimate prepared by 

the Director of the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974. 

EARMARKS AND TAX AND TARIFF BENEFITS

H.R. 602 does not contain any Congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of rule 

XXI of the Rules of the House of Representatives. 


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COMMITTEE COST ESTIMATE

The Committee adopts as its own the cost estimate on H.R. 602 

prepared by the Director of the Congressional Budget Office pursuant to section 402 of the Congressional Budget Act of 1974. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House 

of Representatives, the following is the cost estimate for H.R. 602 

provided by the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974. 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, May 13, 2013. 

Hon. JEFF MILLER, 

Chairman, Committee on Veterans’ Affairs, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 602, the Veterans 2nd 

Amendment Protection Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Dwayne M. Wright. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

H.R. 602—Veterans 2nd Amendment Protection Act 

H.R. 602 would modify an existing requirement that certain individuals determined to be mentally incompetent by the Department 

of Veterans Affairs (VA) be prohibited from purchasing or possessing legal firearms. CBO expects that implementing H.R. 602 

would have no significant budgetary impact. 

Under current law, when VA deems individuals to be mentally 

incapacitated, mentally incompetent, experiencing an extended loss 

of consciousness, or otherwise unable to manage their own affairs, 

it is required to provide that information to the Department of Justice (DOJ). Such individuals are then added to the list of those prohibited from purchasing or possessing firearms. Under H.R. 602, a 

judicial authority would have to determine that veterans are dangerous before VA would be required to report them to DOJ. CBO 

expects that such a requirement would have an insignificant impact on VA’s workload. 

Enacting H.R. 602 would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. 

H.R. 602 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Dwayne M. Wright. 

The estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 


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FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal mandates regarding H.R. 602 prepared by the Director of the Congressional Budget Office pursuant to section 423 of the Unfunded Mandates Reform Act. 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act would be created by H.R. 602. 

STATEMENT OF CONSTITUTIONAL AUTHORITY

Pursuant to Article I, section 8 of the United States Constitution, 

the reported bill is authorized by Congress’ power to ‘‘provide for 

the common Defense and general Welfare of the United States.’’ 

APPLICABILITY TO LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act. 

STATEMENT ON DUPLICATION OF FEDERAL PROGRAMS

Pursuant to section 3(j) of H. Res. 5, 113th Cong. (2013), the 

Committee finds that no provision of H.R.602, the ‘‘Veterans 2nd 

Amendment Protection Act,’’ establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULEMAKING

Pursuant to section 3(k) of H. Res. 5, 113th Cong. (2013), the 

Committee estimates that H.R. 602 does not require any directed 

rule makings. 

SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Short title 

This section provides the short title of H.R. 602 as the ‘‘Veterans 

2nd Amendment Protection Act.’’ 

Section 2. Conditions for treatment of certain persons as adjudicated mentally incompetent for certain purposes 

Section 2(a) would provide that, in any case arising out of the administration by the Secretary of laws and benefits under title 38, 

a person who is mentally incapacitated, deemed mentally incompetent, or experiencing an extended loss of consciousness shall not 

be considered adjudicated as a mental defective under subsection 

(d)(4) or (g)(4) of section 922 of title 18, as pertain to acquiring, possessing, or transporting a firearm or ammunition, without the 

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


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of competent jurisdiction that such person is a danger to himself 

or herself or others. 

Section 2(b) would make a clerical amendment to the table of sections at the beginning of Chapter 55 of title 38. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

TITLE 38, UNITED STATES CODE 

* * * * * * * 

PART IV—GENERAL ADMINISTRATIVE 

PROVISIONS 

* * * * * * * 

CHAPTER 55—MINORS, INCOMPETENTS, AND OTHER 

WARDS 

Sec. 

5501. Commitment actions. 

* * * * * * * 

5511. Conditions for treatment of certain persons as adjudicated mentally incompetent for certain purposes. 

* * * * * * * 

§ 5511. Conditions for treatment of certain persons as adjudicated mentally incompetent for certain purposes 

In any case arising out of the administration by the Secretary of 

laws and benefits under this title, a person who is mentally incapacitated, deemed mentally incompetent, or experiencing an extended loss of consciousness shall not be considered adjudicated as 

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

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

judicial authority of competent jurisdiction that such person is a 

danger to himself or herself or others. 

* * * * * * * 

Æ 


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