by Marshall Lewin - Thursday, November 17, 2016

Imagine being convicted of a crime that you were never arrested for, never charged with, never offered an attorney to defend yourself from, never went to court or appeared before a judge to answer for—a crime you were never even notified that you were convicted of, until you tried to buy a gun and were told that your right to purchase, own or even touch any firearm had been revoked.

That’s exactly the Kafkaesque nightmare too many veterans are facing in America today.

As a result of an Obama Aadministration policy, American veterans who receive benefits through the Veterans Affairs Department (VA) and who have fiduciaries—individuals designated to help them with their financial affairs—have been ipso facto defined to be “incompetent.”

As a result of that designation—and apparently in some cases, even without that designation—veterans are being denied their Second Amendment right to buy or own any firearm, even in their own homes, even to defend themselves and their families.

While it’s hard to find veterans willing to speak out about this injustice (since they no doubt fear retribution from a federal bureaucracy that’s been weaponized by the Obama White House), I talked to two people—a Pennsylvania attorney and a county veterans services officer from North Carolina—who know firsthand that this is happening. And it’s happening to veterans who present no danger to themselves or anyone else.

“If I see one case of this per year in my county—and if in most cases, the vet never complains—then how often is it really happening?” — Veterans’ Services Officer in North Carolina.Pennsylvania attorney Joshua Prince represents a veteran who, despite having no criminal record—and despite never having been assigned a fiduciary by the VA—nevertheless found that he’s now prohibited from owning any firearm. The only way he even learned about it was that when he tried to purchase a gun, he was denied and told the basis was the “Veterans Affairs Administration.”

“I had heard rumors about vets being denied as a result of having third-party fiduciaries assigned, but I’d never seen it firsthand,” Prince said. “But now, if they’re denying Second Amendment rights to my client, who doesn’t even have a fiduciary, this goes far beyond even that.”

As Prince explained, when he contacted VA to find out why his client had lost his gun rights, they told him that although the veteran had not been assigned a fiduciary to help him with his finances, he was in so-called “supervised direct payment” status, which apparently carries the same prohibitions.

According to the VA, veterans under “supervised direct payment” status are subject to “continuing supervision of their fiduciary activity” to ensure they are “capable of handling their financial affairs.”

That indecipherable lawyerese raised red flags for attorney Prince. “I was told by the VA representative that they simply watched the veteran’s financial accounts,” he said. “Are they going into his personal bank accounts and reviewing his transactions without a warrant? What other constitutional rights of my client are being violated?”

That’s a good question. Because if the VA is snooping on vets’ bank accounts, they’re not just violating their Second Amendment right to arms and their Fifth Amendment right to due process—the agency is also violating vets’ Fourth Amendment right to privacy.

And they’re doing it through apparent subterfuge.

According to Prince, his client—a veteran in his late 60s—had lived for years without receiving any special compensation when the VA offered him more. “They told him, ‘Look, you’re entitled to some additional money if you want it,’” Prince explained. “Who’s going to turn down additional money?”

It reminds you of the agreements by which the American Indians were swindled: “We’ll give you all these shiny trinkets, if you’ll just sign this piece of paper.” And it appears that’s exactly what’s happening.But if having a fiduciary is ipso facto proof of incompetence, then how is the agreement establishing that fiduciary arrangement valid, when incompetent people can’t sign contracts?

According to Prince, he has several friends in the military, including one man in special operations, who told Prince that the VA has workshops where they coach military personnel on how to qualify for a post-traumatic stress disorder (PTSD) classification and thereby qualify for additional benefits. “He’s greatly concerned that this is all part and parcel of their intent to start denying most veterans their Second Amendment rights by labeling them as ‘mentally ill,’” Prince said. “And that is extremely alarming to me.”

It also may be far more widespread than reported.

The North Carolina county veterans’ services officer I spoke to told me that veterans come to him after they receive letters from the VA notifying them that their right to keep and bear arms has been revoked.

He said in the past five or six years, he seen five or six such letters. “But that’s just the five or six that come to my attention. How many more are just thrown away and ignored? And if I’m seeing it once a year in my county, it’s probably happening 100 times a year or more across the state.”

Why? Maybe because, as he explained, getting tagged with a “financial incompetence” black flag is easier than you might think.

One veteran he’d assisted had been flagged during a PTSD evaluation: “They asked him, ‘Who pays the bills in your family?’ and he said, ‘My wife pays the bills.’ So in their report, they said that he was financially incompetent because he couldn’t handle his own financial affairs.”

Boom—your wife pays the bills ... so you can’t be trusted to own a gun.

In another case, the North Carolina officer recounted, a veteran owed the VA some money, “maybe two or three thousand dollars, for some surgery that wasn’t service connected. They set up a payment plan for him to pay back the money. But something happened and he missed a payment. When you miss a payment, you’re ‘financially incompetent.’ And then here comes that letter: No more Second Amendment rights.

“It’s almost like a backdoor form of gun confiscation.”

Once you’re on the list, it can take a great deal of time and treasure to get your rights restored. Because it can take months or even years to wade through the bureaucracy and paperwork required even to get a fair hearing.

As Prince explained, “My client is going to have to incur the cost of a psychological examination, as well as some sort of report. He may also have to pay to have a psychiatrist attend the hearing. And those are not small costs. Since no one knows how long it will take, you typically have to pay them for an entire day, which can be $5,000 to $8,000. Add the cost of the initial evaluation and report, the attorney’s fees and everything else, and you’re looking at a lot of money.”

In the final analysis, this whole scheme may well be outside the law and/or violate the U.S. Constitution. As Prince said, “I would argue that my client never lost his right to own a gun, because I don’t believe there was ever any basis in the law for the FBI and the VA to effectively rescind his Second Amendment rights.”

Furthermore, there’s an absurd contradiction in the entire process itself: When a veteran is assigned a fiduciary to handle his or her financial affairs, they sign an agreement certifying such. But if having a fiduciary is ipso facto proof of incompetence, then how is the agreement establishing that fiduciary arrangement valid, when incompetent people can’t sign contracts?

“That’s the Catch-22 that I’ve found very fascinating,” said the North Carolina veterans’ representative.

The good news is that upon taking office, President Donald Trump can probably rectify this injustice quickly and easily, Prince suggested. The president could simply inform the VA that its policy violates the principle of due process and is therefore invalid, and direct the FBI to remove these individuals from its prohibited persons list.

For many veterans, who pose no threat to themselves or others, such a remedy is long overdue.

After all, these men and women risked life and limb to defend the rights that we here at home often take for granted. To think that the very government that sent them overseas would try to swindle them out of those rights when they come back home is probably the crowning injustice of them all.