II 115th CONGRESS 2d Session S. 2386 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. Short title This Act may be cited as the Veterans’ Second Amendment Rights Restoration Act of 2018 . 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: 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).