Issue in Focus
Mar 16 2018
The men and women of our armed forces put themselves at risk around the world every day so that we at home can enjoy the rights guaranteed by the United States Constitution. At a bare minimum we should honor their service by making sure they have the same rights we do when they return home.
Unfortunately some in Congress are working to pass legislation that would undermine our veterans’ due process rights.
The Fix NICS Act of 2017 has a laudable goal: to decrease gun violence by increasing state and federal agency participation in the National Instant Criminal Background Check System (NICS).
Mandated by the Brady Handgun Violence Prevention Act, NICS is a national database of people who are not allowed to purchase or possess firearms. The names on the list fall into one of nine categories listed under 18 U.S.C. § 922(g). For example, the law prohibits people from owning or possessing a gun if they have been “convicted in any court of a misdemeanor crime of domestic violence,” “discharged from the Armed Forces under dishonorable conditions,” or “convinced in any court of a crime punishable by imprisonment for a term exceeding one year.”
When a licensed firearm dealer wants to sell a gun to a customer, that dealer must first contact NICS to see if the buyer is on the list. If the buyer’s name is on the list, the dealer cannot sell a firearm to that buyer.
For the most part, the system works. Sometimes, unfortunately, it does not. In 2016, an Air Force veteran who was dishonorably discharged for a domestic violence conviction before a general court-martial attempted to buy a firearm from a federally licensed gun dealer. The dealer sent his name to NICS, and his name should have appeared in the system due to both his dishonorable discharge and his domestic violence conviction. However, the Air Force never sent this veteran’s name to NICS, so his name cleared the system and the dealer sold him the firearm.
That convicted domestic abuser went on to kill 26 people in Sutherland Springs, Texas with that firearm in 2017. If the Air Force had forwarded the killer’s name to NICS, as it was required to do, then those 26 people might be alive today.
So we do need to fix NICS. But the current Fix NICS bill before the Senate has a fatal flaw that undermines the due process rights of our veterans.
Specifically, it allows federal agencies to continue to label veterans as “mental defectives,” thus stripping them of their right to possess firearms.
Of course, anyone who has been adjudicated by a judge as a potential danger to themselves or others should not be able to buy or possess a gun. But that is not what the Veterans Administration does to our veterans. Instead, the VA labels veterans who are unable to manage their benefits as “mentally defective” and sends their names to the FBI to be added to the list of people forbidden from owning firearms.
And this is not a rare occurrence. As of December 2016, the entire Executive Branch had sent more than 173,000 “metal defective” names to the NICS index. Of those 173,000 names, almost 168,000 came from the VA. That’s more than 97% of all federally generated records.
Our veterans should not have to worry that their civil rights will be violated if they seek help from the very federal agency that was designed to help them. And none of us should have to worry that convicted domestic abusers, or any of the other eight categories of people prohibited from possessing firearms, will go on a shooting spree.
Fortunately there is an easy fix to the Fix NICS bill. A single amendment requiring a judge to determine that a person is a danger to themselves or others, or meets similar criteria, before being labeled a “mental defective” would do the trick.
We are confident the Senate can make this change, thus better protecting us all.
This op-ed was co-written by Mark Geist and first appeared on Townhall.com