Does A Veteran Have His or Her Gun Ownership Rights When Deemed Incapacitated

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Guardianship & Veterans Benefits Attorney

“We have received information showing that because of your disabilities you may need help handling your Department of Veteran Affairs (VA) benefits.”  This is the opening sentence to a generally troublesome letter usually begins.  In actuality it is what happens when Veterans Affairs claims the beneficiary is incompetent and unable to handle his or her affairs.  This means that someone – a fiduciary (a close family member) – must be brought in to help manage the funds.  Things like this usually happen when a doctor completes the relevant VA form stating the person receiving the benefits has dementia or other illnesses that affect the mind.  What is most interesting – or perhaps upsetting for many veterans who may be deemed incompetent by Veterans Affairs – is that their second amendment rights can be significantly affected.

In fact, once the incompetency finding is finalized, the name of the person deemed incompetent in the process stated above, gets included into a database run by the FBI called the National Instant Criminal Background Check System.  Anyone attempting to legally purchase a firearm in the United States must have their name checked against the database by a licensed gun dealer before the sale is finalized.  Basically, there is a process that gun owning VA beneficiaries can undergo with the help of an attorney to make sure that they can keep their guns and purchase guns legally even if deemed incompetent by Veterans Affairs. In Henderson v. U.S. the Supreme Court of the United States held that a person who is not entitled under the federal law to possess firearms does not also automatically lose the property right to those firearms.  This is where the concept of “gun trusts” come in.  Guns of a client who have been deemed incompetent are placed into what is known as a gun trust.  This way the client cannot possess the guns, but still has legal ownership over all of the guns.  In short, the trustee can keep the guns locked in a cabinet or move them to a location in which the beneficiary cannot access.

To discuss your NJ Veterans Benefits matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.