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Hastings Constitutional Law Quarterly

Abstract

Over the past decade the Department of Veterans Affairs ("VA") quietly reported hundreds of thousands of veterans to the National Instant Criminal Background Check list. Placement on the list prevents veterans from obtaining firearms from federal firearms licensees, effectively precluding exercise of the fundamental right to own a firearm. As of June 1, 2012, there were 153,298 names on the list with a shocking 99.3% of them from the VA. The VA is overreporting veterans by utilizing a very low financial incompetence standard: Once it determines that a veteran requires a fiduciary to administer benefit payments, the VA reports that veteran to the gun ban list.

This Article discusses and applies the holding in two relevant Supreme Court cases to analyze the VA standards, process and procedures in a modern constitutional light: District of Columbia v. Heller and McDonald v. City of Chicago. This Article concludes that the VA's regulatory scheme does not fit inside the bounds of current federal gun laws and that, in the context of the Second Amendment, the VA's use of the financial incompetence standard is unconstitutional because it is not narrowly tailored to determine whether the veteran is a danger to self or others. Next, this Article concludes the standard employed by the VA is arbitrary and does, in fact, result in discriminatory application (99.3% of all names on the list are from the VA) because the procedural safeguards in place are wholly inadequate to protect the fundamental nature of the Second Amendment, and therefore, the VA's procedural stances likewise violate procedural due process demands.

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