The DEATH of a U.S. military veteran allegedly shot by a former Marine suffering from PTSD in Texas put the issue of mental illness in the forefront of concealed weapons discussions.
Former Navy SEAL Chris Kyle and his neighbor Chad Littlefield took former Marine Eddie Ray Routh to a Texas gun range to help him, but for some reason Routh allegedly turned his gun on his two mentors, killing them both. Kyle is famous as the most deadly sniper in U.S. history, with more than 150 confirmed kills. He co- authored a book, AMERICAN SNIPER.
By most accounts, PTSD qualifies as a “mental illness” and currently about 30% of veterans are being treated for the “disorder.” Whether or not the condition is a disorder, illness, or disability is a cloudy issue.
The Veterans Administration treats thousands of “wounded warriors,” and makes disability payments to them. Herein lies the unanswerable question. “Should these people be allowed to carry concealed weapons or even possess weapons in a civilian society?”
VA Headquarters told the GUARDIAN, ” In Fiscal Year (FY) 2012, 502,546 Veterans with primary or secondary diagnosis of PTSD received treatment at Department of Veterans Affairs (VA) medical centers and clinics. Of those Veterans treated in FY 2012 for PTSD, 119,482 (24 percent) were Operation Iraqi Freedom/Operation Enduring Freedom/Operation New Dawn Veterans. Between FY 2002 and through third quarter of FY 2012, a cumulative number of 239,094 OEF/OIF/OND Veterans have received a provisional diagnosis of PTSD in VA Medical Centers and clinics.”
The county sheriff who issues concealed carry permits under Idaho law passes out the licenses almost without question to vets who have a form DD214 proving they served their country and are presumed to be trained in the use of firearms.
However, whether a civilian or a former member of the Armed Forces, there is no way for permit issuers or those doing background checks to determine who is or has been treated for mental illness–or even what defines mental illness.
For its part, BOISE PD has done an admirable job working with veterans. Chief Mike Masterson has personally taken on the mental illness cause after a shootout between a veteran and his officers led to an arrest of Sgt. George Nickel, but remarkably no injuries.
Since the issue of toting a gun has been reduced to a Second Amendment of the United States Constitution issue, the question of “can someone with PTSD or someone being treated for mental illness be deprived of the right to bear arms?”
VA also provided the following information regarding background checks and release of records:
National Instant Criminal Background Check System
The Brady Handgun and Violence Prevention Act of 1993 (The Brady Act), prohibits the sale of firearms to certain people. Title 18 of the United States Code (U.S.C.), Section 922(g)(4) defines as one class of ineligible persons anyone who “has been adjudicated as a mental defective or has been committed to a mental institution.” The definition of “adjudicated as a mental defective” by the Department of Justice (DoJ) is consistent with the definition of mental incompetency by the Department of Veterans Affairs (VA).
VA regulations define a mentally incompetent person as “one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation.” (38 Code of Federal Regulations 3.353(a)). The mere existence of mental illness is insufficient grounds for a finding of incompetence. Rather, that mental illness must prevent a beneficiary from managing his/her own finances. Unless the medical evidence is clear, convincing and leaves no doubt, VA makes no determination of incompetency without a definite finding by responsible medical authorities. If a reasonable doubt arises regarding a beneficiary’s mental capacity to contract or to manage his/her own affairs, VA resolves such doubt in favor of competency. VA notifies the beneficiary in advance of the proposed finding of incompetency and informs the beneficiary of the right to submit evidence or request a hearing.
Pursuant to Section 103(e)(1) of The Brady Act, a person who is prohibited, based on a finding of incompetency, from possessing, shipping, transporting, or receiving firearms or ammunition must be reported to DoJ for inclusion in the National Instant Criminal Background Check System (NICS) database. The Federal Bureau of Investigation (FBI) manages the NICS database for DoJ.
In 1998, VA and the FBI signed a memorandum of understanding (MOU) in which VA agreed to provide to the FBI the names of individuals who have been adjudicated mentally incompetent. Pursuant to the MOU, VA provides the beneficiary’s name, date of birth, gender, and identifier of the agency record. VA does not provide specific medical records or findings regarding an individual’s mental health status.
The Brady Act initially required the continuation of firearms prohibitions to persons even if an agency later restored competency. However, on January 8, 2008, the President signed The NICS Improvement Amendments Act of 2007, Public Law 110-180 (The Act). The Act removes firearms restrictions for persons no longer adjudicated as incompetent, and mandates a program for relief of the restrictions for those who are presently adjudicated incompetent, in accordance with 18 U.S.C. 925(c).
Question 1: Has VA set up a relief program, how many people have applied and what is the status of those applications?
Answer: In November 2010, after consulting members of Congress, the Department of Justice, and the Office of General Counsel, VA released Fast Letter 10-51, Processing Requests for Relief from the Reporting Requirements of the National Instant Criminal Background Check System (NICS). The fast letter provided information to VA field offices regarding the NICS relief program and the procedures for handling requests for relief. Thus far, VA has received a total of 101 requests for relief. As of March 11, 2011, VA has denied 12 requests and granted 1, leaving 88 pending relief requests.
Question 2: Has VA removed any records from NICS based on some of the criteria laid out in the NICS Improvement Amendments Act?
Answer: Pursuant to Title I, Section 101(a)(4)(D) of the NIAA, when an individual has competency restored, VA must update, correct, or remove the name of the individual from any database VA maintains and makes available to DoJ for inclusion in NICS. Prior to May 2008, VA only removed records from NICS if the beneficiary was erroneously entered or deceased. However, in May 2008, VA began electronically informing DoJ when a beneficiary’s competency was restored. In 2009, VA sent to the FBI at least 4,363 records to be removed from the NICS database. However, these numbers do not distinguish between records deleted because of regained competency and those for other reasons, such as death of the beneficiary. At this time, VA is unable to provide the exact number of records it has removed from NICS for any specific factor.
Question 3: How many records does VA send to NICS each year?
Answer: In November 1999, VA provided DoJ with an initial list of 88,898 incompetent beneficiaries. Each month thereafter, VA provided NICS with a list of names of VA beneficiaries rated incompetent to manage their VA benefit payments. From November 2007 to June 2009, VA sent 65,910 transactions to NICS. However, transactions include additions, deletions, and updates. As of February 28, 2011, VA has 129,501 entries in the NICS Index.
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