Veterans’ Second Amendment Rights Restoration Act of 2019

II 116TH CONGRESS 1ST SESSION S. 1331 To provide additional protections for our veterans. IN THE SENATE OF THE UNITED STATES MAY 6, 2019 Mr. GRASSLEY (for himself, Mr. MANCHIN, Ms. MURKOWSKI, Mr. CRAPO, Mr. RISCH, Mr. CRAMER, and Ms. 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Veterans’ Second 4 Amendment Rights Restoration Act of 2019’’. 5 SEC. 2. ADDITIONAL PROTECTIONS FOR OUR VETERANS. 6 (a) IN GENERAL.—Chapter 55 of title 38, United 7 States Code, is amended by adding at the end the fol- 8 lowing new section: 9 VerDate Sep 11 2014 03:05 May 10, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 \\ALPHA3\E\BILLS\S1331.IS S1331 kjohnson on DSK79L0C42 with BILLS 2 •S 1331 IS ‘‘§ 5511. Conditions for treatment of certain persons 1 as adjudicated mentally incompetent for 2 certain purposes 3 ‘‘(a) IN GENERAL.—(1) Beginning on the date of en- 4 actment of this section, in any case arising out of the ad- 5 ministration by the Secretary of laws and benefits under 6 this title, the Secretary shall not determine a person to 7 be adjudicated as a mental defective under subsection 8 (d)(4) or (g)(4) of section 922 of title 18 unless the Fed- 9 eral Government has met the burden of proving, by clear 10 and convincing evidence, that the person is a danger to 11 self or others. 12 ‘‘(2) The process to determine whether such person 13 is a danger to self or others, as set forth in this section, 14 shall proceed only after the Department has determined 15 that a person requires the assignment of a fiduciary due 16 to a finding of mental incompetency. 17 ‘‘(3) A person who is subject to the process set forth 18 in this section that may result in a finding that he or she 19 is a danger to self or others shall be provided formal notice 20 and a process by which to challenge the Federal Govern- 21 ment’s position, and shall be provided written notice of 22 the effect of the ruling with respect to their ability to own 23 and possess firearms and the protections granted under 24 this section. 25 VerDate Sep 11 2014 03:05 May 10, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 \\ALPHA3\E\BILLS\S1331.IS S1331 kjohnson on DSK79L0C42 with BILLS 3 •S 1331 IS ‘‘(b) DETERMINATION OF DANGEROUSNESS.—(1) 1 The process by which a person may be determined to be 2 a danger to self or others shall be initiated, with the excep- 3 tion of those persons described in subsection (i)(1), only 4 after the Department has determined that a person re- 5 quires the assignment of a fiduciary due to a finding of 6 mental incompetency and if the Department has a reason- 7 able basis based on articulable facts that a person may 8 be a danger to self or others. After such reasonable basis 9 is found, the Department may then proceed to formally 10 determine, based on clear and convincing evidence, wheth- 11 er such person is a danger to self or others for purposes 12 of reporting to the National Instant Criminal Background 13 Check System. 14 ‘‘(2) FACTORS TO CONSIDER IN THE COURSE OF DE- 15 TERMINING A REASONABLE BASIS.—In analyzing whether 16 a reasonable basis exists that a person is a danger to self 17 or others, the Department may consider all records re- 18 viewed in the course of assigning a fiduciary. Once that 19 reasonable basis is found to exist, the Department may 20 then proceed to formally determine, based on clear and 21 convincing evidence, whether a person is a danger to self 22 or others for purposes of reporting to the National Instant 23 Criminal Background Check System. 24 VerDate Sep 11 2014 03:05 May 10, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 \\ALPHA3\E\BILLS\S1331.IS S1331 kjohnson on DSK79L0C42 with BILLS 4 •S 1331 IS ‘‘(3) FACTORS TO CONSIDER IN THE COURSE OF DE- 1 TERMINING WHETHER A PERSON IS A DANGER TO SELF 2 OR OTHERS.— 3 ‘‘(A) In analyzing whether a person is a danger 4 to self or others, the Department may consider all 5 records reviewed in the course of assigning a fidu- 6 ciary and a person’s existing medical records. 7 ‘‘(B) In analyzing whether a person is a danger 8 to self or others, the Department may consider a 9 current statement from the beneficiary’s primary 10 health physician assessing the beneficiary’s current 11 and past (5 year period preceding the initiation of 12 this process) mental health status, specifically 13 whether the beneficiary has ever been a danger to 14 self or others. A statement shall be considered cur- 15 rent if it is based upon an assessment conducted 16 during the 90-day period immediately preceding the 17 initiation of the Medical Review. 18 ‘‘(C) In analyzing whether a person is a danger 19 to self or others, the Department may consider the 20 beneficiary’s reputation, as provided in statements 21 and other evidence relating to the beneficiary. These 22 statements must identify the person supplying the 23 information; provide the person’s complete contact 24 information, to include a current address and tele- 25 VerDate Sep 11 2014 03:05 May 10, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 \\ALPHA3\E\BILLS\S1331.IS S1331 kjohnson on DSK79L0C42 with BILLS 5 •S 1331 IS phone number; and describe the person’s relation- 1 ship with the beneficiary and frequency of contact. 2 Specifically, the person providing such a statement 3 shall indicate whether the beneficiary has a reputa- 4 tion for violence and explain why the beneficiary is 5 a danger to self or others. 6 ‘‘(D) In analyzing whether a person is a danger 7 to self or others, the Department may consider other 8 factors reasonably bearing on whether such person is 9 a danger to self or others. 10 ‘‘(E) If after review of evidence acquired in 11 paragraph (3) the Department finds based on clear 12 and convincing evidence that a person is a danger to 13 self or others, the Department shall proceed to sub- 14 section (c) to initiate a formal process to notify such 15 person. 16 ‘‘(4) If a conclusion by the Department that a person 17 is a danger to self or others is not made in accordance 18 with paragraph (1) through (3), the Federal Government 19 shall not begin the process to find that such person is a 20 danger to self or others. 21 ‘‘(c) PROCESS.—If a conclusion that a person is a 22 danger to self or others is made under subsection (b), not 23 later than 30 days after that date on which such conclu- 24 sion is made, the Department shall provide notice to the 25 VerDate Sep 11 2014 03:05 May 10, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 \\ALPHA3\E\BILLS\S1331.IS S1331 kjohnson on DSK79L0C42 with BILLS 6 •S 1331 IS person, in writing, of the medical finding, the rights and 1 protections afforded by this section, and the effect of a 2 future administrative or judicial ruling with respect to the 3 ability of the person to own and possess firearms. 4 ‘‘(d) ADMINISTRATIVE REVIEW.—(1)(A) Except as 5 provided in subsection (i), not later than 60 days after 6 the date on which a person described in subsection (a) re- 7 ceives notice of the pendency of the Federal Government 8 action to determine whether or not such person is a danger 9 to self or others, such person may request a review by 10 the board designed or established under paragraphs (2) 11 and (3) or a court of competent jurisdiction to determine 12 whether such person is a danger to self or others. 13 ‘‘(B) If such person does not specify a forum, the 14 Federal Government shall choose the forum. 15 ‘‘(C) In such assessment, the board may consider the 16 person’s honorable discharge or decoration and other miti- 17 gating factors reasonably bearing on whether such person 18 is a danger to self or others. 19 ‘‘(2) Not later than 120 days after the date of enact- 20 ment of this section, the Secretary shall designate or es- 21 tablish a board that shall, upon request of a person under 22 subsection (a), make a determination after both parties 23 have presented their case as to whether a person is a dan- 24 ger to self or others. 25 VerDate Sep 11 2014 03:05 May 10, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 \\ALPHA3\E\BILLS\S1331.IS S1331 kjohnson on DSK79L0C42 with BILLS 7 •S 1331 IS ‘‘(3) The board shall consist of three individuals, who 1 shall either be retired Federal or State judges in good 2 standing or administrative law judges appointed under 3 section 3105 of title 5 in good standing, for a term of 4 two years each and a majority decision shall control. 5 ‘‘(4) A determination by the board designated or es- 6 tablished under paragraph (2) or by a court of competent 7 jurisdiction that a person does not meet the standard 8 under subsection (f) shall preclude the Secretary from re- 9 porting such person to the National Instant Criminal 10 Background Check System for the purpose of prohibiting 11 the acquisition, receipt, transfer, shipment, transpor- 12 tation, or possession of firearms or ammunition. 13 ‘‘(5)(A) Not later than 90 days after the date on 14 which the person or Federal Government chooses the ad- 15 ministrative review process, the board shall make a deter- 16 mination. 17 ‘‘(B) If the board does not make a determination 18 within the required 90-day period, the Secretary shall not 19 report the person to the National Instant Criminal Back- 20 ground Check System for the purpose of prohibiting the 21 acquisition, receipt, transfer, shipment, transportation, or 22 possession of firearms or ammunition. 23 ‘‘(e) JUDICIAL REVIEW.—(1) Not later than 45 days 24 after the date on which an assessment of a person under 25 VerDate Sep 11 2014 03:05 May 10, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 \\ALPHA3\E\BILLS\S1331.IS S1331 kjohnson on DSK79L0C42 with BILLS 8 •S 1331 IS subsection (d) is made, such person or the Federal Gov- 1 ernment may file a petition for judicial review of the 2 board’s determination with a court of competent jurisdic- 3 tion. 4 ‘‘(2) A court shall review a case under paragraph (1) 5 de novo. 6 ‘‘(f) BURDEN OF PROOF.—The burden of proof for 7 all actions arising under this section shall be on the Fed- 8 eral Government to prove, based on clear and convincing 9 evidence, that a person is a danger to self or others and 10 such burden shall be met before the person may be adju- 11 dicated as a mental defective under subsection (d)(4) or 12 (g)(4) of section 922 of title 18. 13 ‘‘(g) EMERGENCY ORDER.—(1)(A) In the case of a 14 person who the Secretary believes may be an imminent 15 danger to self or others, the Secretary may file an emer- 16 gency petition in a court of competent jurisdiction to seek 17 a temporary order prohibiting the acquisition, receipt, 18 transfer, shipment, transportation, or possession of fire- 19 arms or ammunition, if the Secretary has already trans- 20 mitted the notification letter described in subsection (c). 21 ‘‘(B) The court in which an action is filed under sub- 22 paragraph (A) may, if the court finds probable cause ex- 23 ists that a person is an imminent danger to self or others, 24 grant such petition. 25 VerDate Sep 11 2014 03:05 May 10, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 \\ALPHA3\E\BILLS\S1331.IS S1331 kjohnson on DSK79L0C42 with BILLS 9 •S 1331 IS ‘‘(C) The Secretary shall submit to the court the in- 1 formation and documents, in unredacted form, that sup- 2 port the Secretary’s position. 3 ‘‘(2) Except as provided in paragraph (3), an emer- 4 gency order issued under this subsection shall expire on 5 the earlier of— 6 ‘‘(A) the date that is 90 days after the date on 7 which the order is issued; or 8 ‘‘(B) the date on which a determination is made 9 by the board established under subsection (d)(2) or 10 a court of competent jurisdiction as to whether the 11 person is a danger to self or others. 12 ‘‘(3) The court may, in its discretion, extend an order 13 issued under this subsection for not more than 30 days. 14 ‘‘(h) REGULATORY CHANGES.—Consistent with the 15 requirements imposed under this section, the Secretary 16 shall review all relevant regulations and revise such regula- 17 tions as necessary. 18 ‘‘(i) PERSONS WITH EXISTING RECORDS.—(1) For 19 persons with existing records in the National Instant 20 Criminal Background Check System database supplied by 21 the Secretary as of the date of enactment of this section, 22 not later than 90 days after such date of enactment, the 23 Secretary shall provide written notice of the opportunity 24 VerDate Sep 11 2014 03:05 May 10, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 \\ALPHA3\E\BILLS\S1331.IS S1331 kjohnson on DSK79L0C42 with BILLS 10 •S 1331 IS for administrative review or judicial review consistent with 1 this section. 2 ‘‘(2) Each person described in paragraph (1) may, 3 at any time, request administrative review under sub- 4 section (d) or judicial review by a court of competent juris- 5 diction to challenge the placement of the person in the 6 National Instant Criminal Background Check System 7 database consistent with the procedures and standards set 8 forth in this section. 9 ‘‘(3) In an action under this subsection, the failure 10 of the Federal Government to prove, based on clear and 11 convincing evidence, that a person is a danger to self or 12 others consistent with the procedures in this section shall 13 result in the removal of such person’s information from 14 the National Instant Criminal Background Check System 15 database. 16 ‘‘(j) NEW AND MATERIAL EVIDENCE.—A person or 17 the Federal government may reopen a finally adjudicated 18 case by submitting new and material evidence consistent 19 with this section. 20 ‘‘(k) DEFINITIONS.—In this section— 21 ‘‘(1) the term ‘court of competent jurisdiction’ 22 means the district court of the United States for the 23 district in which the person who is subject to the as- 24 sessment or determination resides; and 25 VerDate Sep 11 2014 03:05 May 10, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 \\ALPHA3\E\BILLS\S1331.IS S1331 kjohnson on DSK79L0C42 with BILLS 11 •S 1331 IS ‘‘(2) the term ‘danger to self or others’ means, 1 in relation to a person, the person is likely to use, 2 carry, or possess a firearm in a manner dangerous 3 to himself or the public due to mental illness, condi- 4 tion, or disease.’’. 5 (b) CLERICAL AMENDMENT.—The table of sections 6 at the beginning of chapter 55 of such title is amended 7 by adding at the end the following new item: 8 ‘‘5511. Conditions for treatment of certain persons as adjudicated mentally in- competent for certain purposes.’’. (c) APPLICABILIT [Text truncated for display. Full text available on Congress.gov.]