II 

115TH CONGRESS 

2D SESSION S. 2386 

To provide additional protections for our veterans. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 6, 2018 

Mr. GRASSLEY (for himself, Mr. MANCHIN, and Mrs. ERNST) introduced the 

following bill; which was read twice and referred to the Committee on 

Veterans’ Affairs 

A BILL 

To provide additional protections for our veterans. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Veterans’ Second 

5 Amendment Rights Restoration Act of 2018’’. 

6 SEC. 2. ADDITIONAL PROTECTIONS FOR OUR VETERANS. 

7 (a) IN GENERAL.—Chapter 55 of title 38, United 

8 States Code, is amended by adding at the end the fol9 lowing new section: 


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1 ‘‘§ 5511. Conditions for treatment of certain persons 

2 as adjudicated mentally incompetent for 

3 certain purposes 

4 ‘‘(a) IN GENERAL.—(1) Beginning on the date of en5 actment of this section, in any case arising out of the ad6 ministration by the Secretary of laws and benefits under 

7 this title, the Secretary shall not determine a person to 

8 be adjudicated as a mental defective under subsection 

9 (d)(4) or (g)(4) of section 922 of title 18 unless the Fed10 eral Government has met the burden of proving, by clear 

11 and convincing evidence, that the person is a danger to 

12 self or others. 

13 ‘‘(2) The process to determine whether such person 

14 is a danger to self or others, as set forth in this section, 

15 shall proceed only after the Department has determined 

16 that a person requires the assignment of a fiduciary due 

17 to a finding of mental incompetency. 

18 ‘‘(3) A person who is subject to the process set forth 

19 in this section that may result in a finding that he or she 

20 is a danger to self or others shall be provided formal notice 

21 and a process by which to challenge the Federal Govern22 ment’s position, and shall be provided written notice of 

23 the effect of the ruling with respect to their ability to own 

24 and possess firearms and the protections granted under 

25 this section. 


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1 ‘‘(b) DETERMINATION OF DANGEROUSNESS.—(1) 

2 The process by which a person may be determined to be 

3 a danger to self or others shall be initiated, with the excep4 tion of those persons described in subsection (i)(1), only 

5 after the Department has determined that a person re6 quires the assignment of a fiduciary due to a finding of 

7 mental incompetency and if the Department has a reason8 able basis based on articulable facts that a person may 

9 be a danger to self or others. After such reasonable basis 

10 is found, the Department may then proceed to formally 

11 determine, based on clear and convincing evidence, wheth12 er such person is a danger to self or others for purposes 

13 of reporting to the National Instant Criminal Background 

14 Check System. 

15 ‘‘(2) FACTORS TO CONSIDER IN THE COURSE OF DE16 TERMINING A REASONABLE BASIS.—In analyzing whether 

17 a reasonable basis exists that a person is a danger to self 

18 or others, the Department may consider all records re19 viewed in the course of assigning a fiduciary. Once that 

20 reasonable basis is found to exist, the Department may 

21 then proceed to formally determine, based on clear and 

22 convincing evidence, whether a person is a danger to self 

23 or others for purposes of reporting to the National Instant 

24 Criminal Background Check System. 


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1 ‘‘(3) FACTORS TO CONSIDER IN THE COURSE OF DE2 TERMINING WHETHER A PERSON IS A DANGER TO SELF

3 OR OTHERS.— 

4 ‘‘(A) In analyzing whether a person is a danger 

5 to self or others, the Department may consider all 

6 records reviewed in the course of assigning a fidu7 ciary and a person’s existing medical records. 

8 ‘‘(B) In analyzing whether a person is a danger 

9 to self or others, the Department may consider a 

10 current statement from the beneficiary’s primary11 health physician assessing the beneficiary’s current 

12 and past (5-year period preceding the initiation of 

13 this process) mental health status, specifically 

14 whether the beneficiary has ever been a danger to 

15 self or others. A statement shall be considered cur16 rent if it is based upon an assessment conducted 

17 during the 90-day period immediately preceding the 

18 initiation of the Medical Review. 

19 ‘‘(C) In analyzing whether a person is a danger 

20 to self or others, the Department may consider the 

21 beneficiary’s reputation, as provided in statements 

22 and other evidence relating to the beneficiary. These 

23 statements must identify the person supplying the 

24 information; provide the person’s complete contact 

25 information, to include a current address and teleVerDate Sep 11 2014 02:46 Feb 09, 2018 Jkt 079200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2386.IS S2386

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1 phone number; and describe the person’s relation2 ship with the beneficiary and frequency of contact. 

3 Specifically, the person providing such a statement 

4 shall indicate whether the beneficiary has a reputa5 tion for violence and explain why the beneficiary is 

6 a danger to self or others. 

7 ‘‘(D) In analyzing whether a person is a danger 

8 to self or others, the Department may consider other 

9 factors reasonably bearing on whether such person is 

10 a danger to self or others. 

11 ‘‘(E) If after review of evidence acquired in 

12 paragraph (3) the Department finds based on clear 

13 and convincing evidence that a person is a danger to 

14 self or others, the Department shall proceed to sub15 section (c) to initiate a formal process to notify such 

16 person. 

17 ‘‘(4) If a conclusion by the Department that a person 

18 is a danger to self or others is not made in accordance 

19 with paragraphs (1) through (3), the Federal Government 

20 shall not begin the process to find that such person is a 

21 danger to self or others. 

22 ‘‘(c) PROCESS.—If a conclusion that a person is a 

23 danger to self or others is made under subsection (b), not 

24 later than 30 days after that date on which such conclu25 sion is made, the Department shall provide notice to the 


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1 person, in writing, of the medical finding, the rights and 

2 protections afforded by this section, and the effect of a 

3 future administrative or judicial ruling with respect to the 

4 ability of the person to own and possess firearms. 

5 ‘‘(d) ADMINISTRATIVE REVIEW.—(1)(A) Except as 

6 provided in subsection (i), not later than 60 days after 

7 the date on which a person described in subsection (a) re8 ceives notice of the pendency of the Federal Government 

9 action to determine whether or not such person is a danger 

10 to self or others, such person may request a review by 

11 the board designed or established under paragraphs (2) 

12 and (3) or a court of competent jurisdiction to determine 

13 whether such person is a danger to self or others. 

14 ‘‘(B) If such person does not specify a forum, the 

15 Federal Government shall choose the forum. 

16 ‘‘(C) In such assessment, the board may consider the 

17 person’s honorable discharge or decoration and other miti18 gating factors reasonably bearing on whether such person 

19 is a danger to self or others. 

20 ‘‘(2) Not later than 120 days after the date of enact21 ment of this section, the Secretary shall designate or es22 tablish a board that shall, upon request of a person under 

23 subsection (a), make a determination after both parties 

24 have presented their case as to whether a person is a dan25 ger to self or others. 


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1 ‘‘(3) The board shall consist of three individuals, who 

2 shall either be retired Federal or State judges in good 

3 standing or administrative law judges appointed under 

4 section 3105 of title 5, United States Code, in good stand5 ing, for a term of two years each and a majority decision 

6 shall control. 

7 ‘‘(4) A determination by the board designated or es8 tablished under paragraph (2) or by a court of competent 

9 jurisdiction that a person does not meet the standard 

10 under subsection (f) shall preclude the Secretary from re11 porting such person to the National Instant Criminal 

12 Background Check System for the purpose of prohibiting 

13 the acquisition, receipt, transfer, shipment, transpor14 tation, or possession of firearms or ammunition. 

15 ‘‘(5)(A) Not later than 90 days after the date on 

16 which the person or Federal Government chooses the ad17 ministrative review process, the board shall make a deter18 mination. 

19 ‘‘(B) If the board does not make a determination 

20 within the required 90-day period, the Secretary shall not 

21 report the person to the National Instant Criminal Back22 ground Check System for the purpose of prohibiting the 

23 acquisition, receipt, transfer, shipment, transportation, or 

24 possession of firearms or ammunition. 


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1 ‘‘(e) JUDICIAL REVIEW.—(1) Not later than 45 days 

2 after the date on which an assessment of a person under 

3 subsection (d) is made, such person or the Federal Gov4 ernment may file a petition for judicial review of the 

5 board’s determination with a court of competent jurisdic6 tion. 

7 ‘‘(2) A court shall review a case under paragraph (1) 

8 de novo. 

9 ‘‘(f) BURDEN OF PROOF.—The burden of proof for 

10 all actions arising under this section shall be on the Fed11 eral Government to prove, based on clear and convincing 

12 evidence, that a person is a danger to self or others and 

13 such burden shall be met before the person may be adju14 dicated as a mental defective under subsection (d)(4) or 

15 (g)(4) of section 922 of title 18. 

16 ‘‘(g) EMERGENCY ORDER.—(1)(A) In the case of a 

17 person who the Secretary believes may be an imminent 

18 danger to self or others, the Secretary may file an emer19 gency petition in a court of competent jurisdiction to seek 

20 a temporary order prohibiting the acquisition, receipt, 

21 transfer, shipment, transportation, or possession of fire22 arms or ammunition, if the Secretary has already trans23 mitted the notification letter described in subsection (c). 

24 ‘‘(B) The court in which an action is filed under sub25 paragraph (A) may, if the court finds probable cause exVerDate Sep 11 2014 00:20 Feb 08, 2018 Jkt 079200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2386.IS S2386

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1 ists that a person is an imminent danger to self or others, 

2 grant such petition. 

3 ‘‘(C) The Secretary shall submit to the court the in4 formation and documents, in unredacted form, that sup5 port the Secretary’s position. 

6 ‘‘(2) Except as provided in paragraph (3), an emer7 gency order issued under this subsection shall expire on 

8 the earlier of— 

9 ‘‘(A) the date that is 90 days after the date on 

10 which the order is issued; or 

11 ‘‘(B) the date on which a determination is made 

12 by the board established under subsection (d)(2) or 

13 a court of competent jurisdiction as to whether the 

14 person is a danger to self or others. 

15 ‘‘(3) The court may, in its discretion, extend an order 

16 issued under this subsection for not more than 30 days. 

17 ‘‘(h) REGULATORY CHANGES.—Consistent with the 

18 requirements imposed under this section, the Secretary 

19 shall review all relevant regulations and revise such regula20 tions as necessary. 

21 ‘‘(i) PERSONS WITH EXISTING RECORDS.—(1) For 

22 persons with existing records in the National Instant 

23 Criminal Background Check System database supplied by 

24 the Secretary as of the date of enactment of this section, 

25 not later than 90 days after such date of enactment, the 


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1 Secretary shall provide written notice of the opportunity 

2 for administrative review or judicial review consistent with 

3 this section. 

4 ‘‘(2) Each person described in paragraph (1) may, 

5 at any time, request administrative review under sub6 section (d) or judicial review by a court of competent juris7 diction to challenge the placement of the person in the 

8 National Instant Criminal Background Check System 

9 database consistent with the procedures and standards set 

10 forth in this section. 

11 ‘‘(3) In an action under this subsection, the failure 

12 of the Federal Government to prove, based on clear and 

13 convincing evidence, that a person is a danger to self or 

14 others consistent with the procedures in this section shall 

15 result in the removal of such person’s information from 

16 the National Instant Criminal Background Check System 

17 database. 

18 ‘‘(j) NEW AND MATERIAL EVIDENCE.—A person or 

19 the Federal Government may reopen a finally adjudicated 

20 case by submitting new and material evidence consistent 

21 with this section. 

22 ‘‘(k) DEFINITIONS.—In this section— 

23 ‘‘(1) the term ‘court of competent jurisdiction’ 

24 means the district court of the United States for the 


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1 district in which the person who is subject to the as2 sessment or determination resides; and 

3 ‘‘(2) the term ‘danger to self or others’ means, 

4 in relation to a person, the person is likely to use, 

5 carry, or possess a firearm in a manner dangerous 

6 to himself or the public due to mental illness, condi7 tion, or disease.’’. 

8 (b) CLERICAL AMENDMENT.—The table of sections 

9 at the beginning of chapter 55 of such title is amended 

10 by adding at the end the following new item: 

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

11 (c) APPLICABILITY.— 

12 (1) DETERMINATIONS BEFORE DATE OF EN13 ACTMENT.—Section 5511 of title 38, United States 

14 Code, as added by subsection (a), shall apply with 

15 respect to all persons who are determined by the 

16 Secretary of Veterans Affairs to be mentally incom17 petent as of the date of enactment of this Act. 

18 (2) DETERMINATIONS AFTER DATE OF ENACT19 MENT.—After the date of enactment of this Act, in 

20 any case arising out of the administration by the 

21 Secretary of laws and benefits under title 38, United 

22 States Code, for persons determined to be a danger 

23 to self or others, such determination shall be made 


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1 consistent with section 5511 of title 38, United 

2 States Code, as added by subsection (a). 

Æ 


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