Drudge Retort: The Other Side of the News
Friday, February 22, 2013

Written By Constitutional Attorney Michael Connelly, J.D.

How would you feel if you received a letter from the U.S. Government informing you that because of a physical or mental condition that the government says you have it is proposing to rule that you are incompetent to handle your own financial affairs? Suppose that letter also stated that the government is going to appoint a stranger to handle your affairs for you at your expense? That would certainly be scary enough but it gets worse.

What if that letter also stated: "A determination of incompetency will prohibit you from purchasing, possessing, receiving, or transporting a firearm or ammunition. If you knowingly violate any of these prohibitions, you may be fined, imprisoned, or both pursuant to the Brady Handgun Violence Prevention Act, Pub.L.No. 103-159, as implemented at 18, United States Code 924(a)(2)."?

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Zack991

 

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That makes is sound like something right from a documentary on a tyrannical dictatorship somewhere in the world. Yet, as I write this I have a copy of such a letter right in front of me. It is being sent by the U.S. Department of Veterans Affairs to hundreds, perhaps thousands, of America's heroes. In my capacity as Executive Director of the United States Justice Foundation (USJF) I have been contacted by some of these veterans and the stories I am getting are appalling.

The letter provides no specifics on the reasons for the proposed finding of incompetency; just that is based on a determination by someone in the VA. In every state in the United States no one can be declared incompetent to administer their own affairs without due process of law and that usually requires a judicial hearing with evidence being offered to prove to a judge that the person is indeed incompetent. This is a requirement of the Fifth Amendment to the U.S. Constitution that states that no person shall "… be deprived of life, liberty, or property without due process of law…".

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Wow this goes way too far.

#1 | Posted by zack991 at 2013-02-22 12:54 PM | Reply | Flag:

Interesting. If this proves to be accurate and widespread as reported, this could go pear shape in a hurry. Of course, the outcome is exactly what the government wants as it will justify to the masses that totalitarian rule is needed and acceptable.

#2 | Posted by Daniel at 2013-02-22 01:11 PM | Reply | Flag:

VA appointment of persons to manage funds of disabled veterans has been around since before I started practicing law over 25 years ago. My former firm handled hundreds of such accounts. The process of determining that incapacity is built into the process by which disability benefits are granted. A condition of receipt of those funds is management by a third party for certain individuals. Two choices are available to the VA for the third party. One is a "federal fiduciary" the other is guardianship. In Texas the preferred and most often used is guardianship because of better controls and bonding requirements for the guardian.

Never heard of or dealt with the gun issue. It is obviously something new. Rest assured that some of those who require third parties to manage their funds, that I am personally aware of, have no business handling guns because they are crazier than a [...]house rat. Also, know the VA has internal procedures to adjust and remove the third party management restrictions. Thus due process is granted. Mr. Connelly needs to be better informed and less alarmist.

#3 | Posted by et_al at 2013-02-22 01:28 PM | Reply | Flag:

Timothy McVeigh was a veteran too.

#4 | Posted by DRJIMMIES at 2013-02-22 01:29 PM | Reply | Flag:

So, if he didn't receive disability funds it's irrelevant.

#5 | Posted by et_al at 2013-02-22 01:40 PM | Reply | Flag:

I found a copy of the letters, they can be found below on the bottom of the page.
redflagnews.com

#6 | Posted by zack991 at 2013-02-22 01:53 PM | Reply | Flag:

#6 | Posted by zack991

Notice page two. Due process.

#7 | Posted by et_al at 2013-02-22 02:04 PM | Reply | Flag:

Yea I just read it. Wow. All the crap that has been going on is starting to make sense.

#8 | Posted by zack991 at 2013-02-22 02:12 PM | Reply | Flag:

I heard this was in the works. I do feel that there needs to be a system in place to handle this with the results of the VA to be challenged in court if someone feels they are unrealistically being denied access to weapons. This needs a court test and right away.

#9 | Posted by paneocon at 2013-02-22 02:22 PM | Reply | Flag:

#9 | Posted by paneocon

Why? It has worked for years with thousands of veterans. It is basically handled as administrative procedures with attendant court review if dissatisfied with the administrative outcome. It's done that way with all administrative agency decisions.

#10 | Posted by et_al at 2013-02-22 02:48 PM | Reply | Flag:

Because with a swipe of a pen they can take away your rights no questions asked instead of them having to prove their case in court and giving us our due process .

#11 | Posted by zack991 at 2013-02-22 03:10 PM | Reply | Flag:

Gun rights are the least important rights we have.

#12 | Posted by DRJIMMIES at 2013-02-22 03:25 PM | Reply | Flag:

I'm skeptical. This may have been standard for years. If not, then my flag starts to go up and I start to wonder "why now?"

#13 | Posted by MUSTANG at 2013-02-22 03:28 PM | Reply | Flag:

Till I see something from a respectable veterans group I'm not worried.

#14 | Posted by Tor at 2013-02-22 03:36 PM | Reply | Flag:

12.
Without the second you have no recourse haunts the government when they take your other rights away. Our gun rights protects all others rights that you so dearly love to quote.

#15 | Posted by zack991 at 2013-02-22 03:56 PM | Reply | Flag:

www.theblaze.com

Breaks it down in even more detail.

TheBlaze reached out to the Department of Veteran's Affairs for more insight but has not heard back yet. From what we found on its website, the VA's Fiduciary Program was established to "protect veterans and beneficiaries who are unable to manage their VA benefits through the appointment and oversight of a fiduciary."

Under the program -- and as stated in the letter -- if a person is deemed incompetent -- which could be due to injury, disease or mental illness -- and unable manage benefit payments, someone can be named as a fiduciary to do so for them. This person, the website states, is generally a family member but court-appointed or professional fiduciaries are possible as well (therefore Connelly's assertion that a "stranger" be named is technically possible, but not the rule).

The counterargument, however, might sound something like this: If a person is rated as too incompetent to handle their own benefit payments, might it be a good time to consider other things that might not be advisable for the person to handle?

The VA states on its Fiduciary Program website, according to the Brady Handgun Violence Prevention Act, being determined as unable to manage benefits then prevents you from "purchasing, possessing, receiving or transporting a firearm or ammunition." This act was signed into law in 1993.

As TheBlaze reported in December 2012, some congress members and others want this law changed:

Sen. Tom Coburn, R-Okla., sought to amend the bill to stop the Veterans Affairs Department from putting the names of veterans deemed too mentally incompetent to handle their finances into the National Instant Criminal Background Check System, which prohibits them from buying or owning firearms.
[...]
"We consider it an abject tragedy that so many of our veterans return home, after risking life and limb to defend our freedom, only to be stripped of their Second Amendment rights because they need help managing their compensation," Chris Cox, the NRA's chief lobbyist, wrote last year in an editorial.
But Connelly in his piece on Red Flag News takes issue with the fact that the letter doesn't specify how incompetency is determined.

"In every state in the United States no one can be declared incompetent to administer their own affairs without due process of law and that usually requires a judicial hearing with evidence being offered to prove to a judge that the person is indeed incompetent," Connelly wrote.

CONTINUING on second post

#16 | Posted by zack991 at 2013-02-22 04:13 PM | Reply | Flag:

The VA's Fiduciary Program website doesn't delve into this either. It does state that a person has the right to appeal his or her fiduciary if he or she disagrees with the fiduciary selection. This does not seem to imply that the classification of incompetency is appealable though.

Finding information about how veterans are evaluated for competency is hard to come by. A document detailing a job description for someone who would evaluate veteran claims, last revised in 2009, seems to give some insight (emphasis added):

The initial examiner develops evidence which would establish that the veteran's actions are such that he cannot conduct himself in a rational manner. Guides are far from precise and considerable imagination is required to ferret out the kind of evidence upon which to base a sound conclusion. However, the primary knowledge requirement is that of understanding the manifestations of mental diseases. The rating board makes the decisions as to competency. Decisions of the VA in matters of competency may vary from court determinations and have a most important bearing on the right to receive benefits. If a beneficiary is judged to be incompetent, the examiner must seek further evidence to determine who should receive the monetary award due.
Connelly in his post stated that USJF will be filing a Freedom of Information Act Request to the VA in an effort to obtain the criteria used to determine competency, which might therefore be "plac[ing] veterans on the background check list that keeps them from exercising their Second Amendment rights."

It should also be pointed out that the VA website says being deemed incompetent to manage benefits does not affect non-VA finances or the person's right to vote.

Still, Connelly questions "who will be next"?

"If you are receiving a Social Security check will you get one of these letters? Will the government declare that you are incompetent because of your age and therefore banned from firearm ownership?" Connelly wrote. "It certainly fits in with the philosophy and plans of the Obama administration. It is also certain that our military veterans don't deserve this and neither do any other Americans."

Let us know what you think of prohibiting veterans from owning firearms if they are deemed incompetent by taking our poll:

#17 | Posted by zack991 at 2013-02-22 04:14 PM | Reply | Flag:

The Blaze sounds like it is as misinformed as Mr. Connelly. The incapacity determination is made as a part of the process of determining eligibility for disability benefits. Here is the VA Compensation page. It walks through the process. Here is Chapter 38 of the Code of Federal Regulations for the VA. Dig through it, it will describe in excruciating detail what the VA can and cannot do. Somewhere in there it will say that medical evidence of disability and incapacity is required.

That is "due process" for receiving VA disability benefits. Due process does not require a court. Due process basically means the right to notice of proceedings and an opportunity to be heard and present evidence. The letter link above is notice. The letter on page 2 describes the opportunity to be heard and present evidence. The Administrative Procedures Act permits court review after exhaustion of the administrative process. Due process is satisfied for purposes of receiving VA benefits.

As I said before, this process has been around for a long time. It appears someone is getting their panties in a wad because they suddenly discovered that a determination mental incapacity can affect that persons right to own a gun. Something also prohibited by law for a long time.

#18 | Posted by et_al at 2013-02-22 05:01 PM | Reply | Flag:


12.
Without the second you have no recourse haunts the government when they take your other rights away. Our gun rights protects all others rights that you so dearly love to quote.

#15 | Posted by zack991 at 2013-02-22 03:56 PM

BS. The second didn't stop the government from passing the Patriot Act among other things.

#19 | Posted by DRJIMMIES at 2013-02-22 06:49 PM | Reply | Flag:

The second just makes it easier for conservatives to gun down those they disagree with or feel threatened by.

#20 | Posted by DRJIMMIES at 2013-02-22 06:50 PM | Reply | Flag:

Funny how gun nuts suddenly become alarmed and outraged when their own ignorance is shoved in their faces. These types of Guardianships have been going on for a long, long time. But only now that the gun nuts have become aware of it has it instantly metamorphosed into an outrage of Constitional dimension. Funny thing is, a few weeks many gun nuts were agreeing that mental checks should be done on individuals wanting to possess firearms.

#21 | Posted by moder8 at 2013-02-22 06:51 PM | Reply | Flag:

Funny how gun nuts suddenly become alarmed and outraged when their own ignorance is shoved in their faces. These types of Guardianships have been going on for a long, long time. But only now that the gun nuts have become aware of it has it instantly metamorphosed into an outrage of Constitional dimension. Funny thing is, a few weeks many gun nuts were agreeing that mental checks should be done on individuals wanting to possess firearms.

#21 | Posted by moder8 at 2013-02-22 06:51 PM | Reply | Flag:

Just because you're a complete joke and completely disregarded people when they expressed concern about these things years ago, doesn't mean the subject hasn't been brought up countless times before.

#22 | Posted by daniel_3 at 2013-02-23 12:08 AM | Reply | Flag:

BS. The second didn't stop the government from passing the Patriot Act among other things.

#19 | Posted by DRJIMMIES at 2013-02-22 06:49 PM | Reply | Flag:

The second amendment was the only one of the bill of rights that the patriot act didn't completely take a dump on. You know what, an army doesn't stop us from being attacked by terrorists so why do we even need one?

#23 | Posted by daniel_3 at 2013-02-23 12:11 AM | Reply | Flag:

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