Title: Veterans' Second Amendment Rights Restoration Act of 2018
Policy area: Armed Forces and National Security

Summary:
Veterans' Second Amendment Rights Restoration Act of 2018
This bill sets forth procedures and conditions for the adjudication of veterans as mentally incompetent. Specifically, the bill requires the federal government to prove by clear and convincing evidence that a person is a danger to himself, herself, or others in order for a person to be adjudicated as mentally defective. Veterans must be provided certain notice, including written notice of the effect the ruling may have on their ability to own and possess firearms.
For an administrative competency proceeding to be initiated, the Department of Veterans Affairs (VA) must first determine (1) that a veteran requires the assignment of a fiduciary due to a finding of mental incompetency, and (2) the VA has a reasonable basis that the person may be a danger to himself, herself, or others.


[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2386 Introduced in Senate (IS)]

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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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Veterans' Second Amendment Rights 
Restoration Act of 2018''.

SEC. 2. ADDITIONAL PROTECTIONS FOR OUR VETERANS.

    (a) In General.--Chapter 55 of title 38, United States Code, is 
amended by adding at the end the following new section:
``Sec. 5511. Conditions for treatment of certain persons as adjudicated 
              mentally incompetent for certain purposes
    ``(a) In General.--(1) Beginning on the date of enactment of this 
section, in any case arising out of the administration by the Secretary 
of laws and benefits under this title, the Secretary shall not 
determine a person to be adjudicated as a mental defective under 
subsection (d)(4) or (g)(4) of section 922 of title 18 unless the 
Federal Government has met the burden of proving, by clear and 
convincing evidence, that the person is a danger to self or others.
    ``(2) The process to determine whether such person is a danger to 
self or others, as set forth in this section, shall proceed only after 
the Department has determined that a person requires the assignment of 
a fiduciary due to a finding of mental incompetency.
    ``(3) A person who is subject to the process set forth in this 
section that may result in a finding that he or she is a danger to self 
or others shall be provided formal notice and a process by which to 
challenge the Federal Government's position, and shall be provided 
written notice of the effect of the ruling with respect to their 
ability to own and possess firearms and the protections granted under 
this section.
    ``(b) Determination of Dangerousness.--(1) The process by which a 
person may be determined to be a danger to self or others shall be 
initiated, with the exception of those persons described in subsection 
(i)(1), only after the Department has determined that a person requires 
the assignment of a fiduciary due to a finding of mental incompetency 
and if the Department has a reasonable basis based on articulable facts 
that a person may be a danger to self or others. After such reasonable 
basis is found, the Department may then proceed to formally determine, 
based on clear and convincing evidence, whether such person is a danger 
to self or others for purposes of reporting to the National Instant 
Criminal Background Check System.
    ``(2) Factors To Consider in the Course of Determining a Reasonable 
Basis.--In analyzing whether a reasonable basis exists that a person is 
a danger to self or others, the Department may consider all records 
reviewed in the course of assigning a fiduciary. Once that reasonable 
basis is found to exist, the Department may then proceed to formally 
determine, based on clear and convincing evidence, whether a person is 
a danger to self or others for purposes of reporting to the National 
Instant Criminal Background Check System.
    ``(3) Factors To Consider in the Course of Determining Whether a 
Person Is a Danger to Self or Others.--
            ``(A) In analyzing whether a person is a danger to self or 
        others, the Department may consider all records reviewed in the 
        course of assigning a fiduciary and a person's existing medical 
        records.
            ``(B) In analyzing whether a person is a danger to self or 
        others, the Department may consider a current statement from 
        the beneficiary's primary-health physician assessing the 
        beneficiary's current and past (5-year period preceding the 
        initiation of this process) mental health status, specifically 
        whether the beneficiary has ever been a danger to self or 
        others. A statement shall be considered current if it is based 
        upon an assessment conducted during the 90-day period 
        immediately preceding the initiation of the Medical Review.
            ``(C) In analyzing whether a person is a danger to self or 
        others, the Department may consider the beneficiary's 
        reputation, as provided in statements and other evidence 
        relating to the beneficiary. These statements must identify the 
        person supplying the information; provide the person's complete 
        contact information, to include a current address and telephone 
        number; and describe the person's relationship with the 
        beneficiary and frequency of contact. Specifically, the person 
        providing such a statement shall indicate whether the 
        beneficiary has a reputation for violence and explain why the 
        beneficiary is a danger to self or others.
            ``(D) In analyzing whether a person is a danger to self or 
        others, the Department may consider other factors reasonably 
        bearing on whether such person is a danger to self or others.
            ``(E) If after review of evidence acquired in paragraph (3) 
        the Department finds based on clear and convincing evidence 
        that a person is a danger to self or others, the Department 
        shall proceed to subsection (c) to initiate a formal process to 
        notify such person.
    ``(4) If a conclusion by the Department that a person is a danger 
to self or others is not made in accordance with paragraphs (1) through 
(3), the Federal Government shall not begin the process to find that 
such person is a danger to self or others.
    ``(c) Process.--If a conclusion that a person is a danger to self 
or others is made under subsection (b), not later than 30 days after 
that date on which such conclusion is made, the Department shall 
provide notice to the person, in writing, of the medical finding, the 
rights and protections afforded by this section, and the effect of a 
future administrative or judicial ruling with respect to the ability of 
the person to own and possess firearms.
    ``(d) Administrative Review.--(1)(A) Except as provided in 
subsection (i), not later than 60 days after the date on which a person 
described in subsection (a) receives notice of the pendency of the 
Federal Government action to determine whether or not such person is a 
danger to self or others, such person may request a review by the board 
designed or established under paragraphs (2) and (3) or a court of 
competent jurisdiction to determine whether such person is a danger to 
self or others.
    ``(B) If such person does not specify a forum, the Federal 
Government shall choose the forum.
    ``(C) In such assessment, the board may consider the person's 
honorable discharge or decoration and other mitigating factors 
reasonably bearing on whether such person is a danger to self or 
others.
    ``(2) Not later than 120 days after the date of enactment of this 
section, the Secretary shall designate or establish a board that shall, 
upon request of a person under subsection (a), make a determination 
after both parties have presented their case as to whether a person is 
a danger to self or others.
    ``(3) The board shall consist of three individuals, who shall 
either be retired Federal or State judges in good standing or 
administrative law judges appointed under section 3105 of title 5, 
United States Code, in good standing, for a term of two years each and 
a majority decision shall control.
    ``(4) A determination by the board designated or established under 
paragraph (2) or by a court of competent jurisdiction that a person 
does not meet the standard under subsection (f) shall preclude the 
Secretary from reporting such person to the National Instant Criminal 
Background Check System for the purpose of prohibiting the acquisition, 
receipt, transfer, shipment, transportation, or possession of firearms 
or ammunition.
    ``(5)(A) Not later than 90 days after the date on which the person 
or Federal Government chooses the administrative review process, the 
board shall make a determination.
    ``(B) If the board does not make a determination within the 
required 90-day period, the Secretary shall not report the person to 
the National Instant Criminal Background Check System for the purpose 
of prohibiting the acquisition, receipt, transfer, shipment, 
transportation, or possession of firearms or ammunition.
    ``(e) Judicial Review.--(1) Not later than 45 days after the date 
on which an assessment of a person under subsection (d) is made, such 
person or the Federal Government may file a petition for judicial 
review of the board's determination with a court of competent 
jurisdiction.
    ``(2) A court shall review a case under paragraph (1) de novo.
    ``(f) Burden of Proof.--The burden of proof for all actions arising 
under this section shall be on the Federal Government to prove, based 
on clear and convincing evidence, that a person is a danger to self or 
others and such burden shall be met before the person may be 
adjudicated as a mental defective under subsection (d)(4) or (g)(4) of 
section 922 of title 18.
    ``(g) Emergency Order.--(1)(A) In the case of a person who the 
Secretary believes may be an imminent danger to self or others, the 
Secretary may file an emergency petition in a court of competent 
jurisdiction to seek a temporary order prohibiting the acquisition, 
receipt, transfer, shipment, transportation, or possession of firearms 
or ammunition, if the Secretary has already transmitted the 
notification letter described in subsection (c).
    ``(B) The court in which an action is filed under subparagraph (A) 
may, if the court finds probable cause exists that a person is an 
imminent danger to self or others, grant such petition.
    ``(C) The Secretary shall submit to the court the information and 
documents, in unredacted form, that support the Secretary's position.
    ``(2) Except as provided in paragraph (3), an emergency order 
issued under this subsection shall expire on the earlier of--
            ``(A) the date that is 90 days after the date on which the 
        order is issued; or
            ``(B) the date on which a determination is made by the 
        board established under subsection (d)(2) or a court of 
        competent jurisdiction as to whether the person is a danger to 
        self or others.
    ``(3) The court may, in its discretion, extend an order issued 
under this subsection for not more than 30 days.
    ``(h) Regulatory Changes.--Consistent with the requirements imposed 
under this section, the Secretary shall review all relevant regulations 
and revise such regulations as necessary.
    ``(i) Persons With Existing Records.--(1) For persons with existing 
records in the National Instant Criminal Background Check System 
database supplied by the Secretary as of the date of enactment of this 
section, not later than 90 days after such date of enactment, the 
Secretary shall provide written notice of the opportunity for 
administrative review or judicial review consistent with this section.
    ``(2) Each person described in paragraph (1) may, at any time, 
request administrative review under subsection (d) or judicial review 
by a court of competent jurisdiction to challenge the placement of the 
person in the National Instant Criminal Background Check System 
database consistent with the procedures and standards set forth in this 
section.
    ``(3) In an action under this subsection, the failure of the 
Federal Government to prove, based on clear and convincing evidence, 
that a person is a danger to self or others consistent with the 
procedures in this section shall result in the removal of such person's 
information from the National Instant Criminal Background Check System 
database.
    ``(j) New and Material Evidence.--A person or the Federal 
Government may reopen a finally adjudicated case by submitting new and 
material evidence consistent with this section.
    ``(k) Definitions.--In this section--
            ``(1) the term `court of competent jurisdiction' means the 
        district court of the United States for the district in which 
        the person who is subject to the assessment or determination 
        resides; and
            ``(2) the term `danger to self or others' means, in 
        relation to a person, the person is likely to use, carry, or 
        possess a firearm in a manner dangerous to himself or the 
        public due to mental illness, condition, or disease.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 55 of such title is amended by adding at the end the following 
new item:

``5511. Conditions for treatment of certain persons as adjudicated 
                            mentally incompetent for certain 
                            purposes.''.
    (c) Applicability.--
            (1) Determinations before date of enactment.--Section 5511 
        of title 38, United States Code, as added by subsection (a), 
        shall apply with respect to all persons who are determined by 
        the Secretary of Veterans Affairs to be mentally incompetent as 
        of the date of enactment of this Act.
            (2) Determinations after date of enactment.--After the date 
        of enactment of this Act, in any case arising out of the 
        administration by the Secretary of laws and benefits under 
        title 38, United States Code, for persons determined to be a 
        danger to self or others, such determination shall be made 
        consistent with section 5511 of title 38, United States Code, 
        as added by subsection (a).
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