In 2017, following the Las Vegas massacre where a shooter used bump-stock equipped rifles to kill 58 people, the ATF was ordered by then-President Trump to regulate bump stocks.

And they did.

At the time, Second Amendment advocates argued the ATF’s abrupt about-face was beyond the scope of authority for a regulatory agency.

Last Friday, the 5th Circuit Court of Appeals in New Orleans concurred. Ruling the ATF had, in fact, short-circuited a required legislative process by redefining bump stocks as machine guns.

Defending their action, the ATF had argued that bump stocks allowed an otherwise semiautomatic rifle to shoot more than one shot with a single pull of the trigger by “harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation.”

The “harnessing” was the reasoning behind their reversal of longstanding policy.

As my grandma was fond of saying “that soap didn’t lather” with the 5th Circuit.

Instead, Judge Jennifer Walker Elrod explained in the ruling: “A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of ‘machinegun' set forth in the Gun Control Act and National Firearms Act.”

This definitely wasn’t a “quick win” for the Second Amendment. Like most court cases, it more closely resembled the slow-speed, but inevitable, collision of supertankers. After all, the ban had already survived challenges in the 6th Circuit Court of Appeals in Cincinnati and a three-judge panel of the 5th.

The full 5th, however, decided to rehear the case. And ruled against the ATF’s argument.

It’s important to note two things: first, the Biden administration has the option to appeal the ruling to the Supreme Court. That’s likely, despite the high court appearing to be “disinclined” to find in favor of much of the convoluted logic used promulgate restrictive firearms regulations.

Which brings us to the second thing: despite being a “win” for 2A advocates, isn’t really a gun rights case.

It’s a case that regarding operational procedures in our government.

The ruling says it’s not the ATF’s place to rewrite existing laws -and existing law says bump stocks are not machine guns.

Authority to pass- or repeal- existing law resides with Congress; not the courts, and (fortunately) neither the DC bureaucracy nor their bosses in the executive branch can circumvent that.

This time, it seems the three-legged stool on which our country was founded, works. It’s creaky and rocks at times, but still functioning.

The continued functionality of our legislative-executive-judicial government is causing no small amount of consternation with legislators, especially those who’ve become accustomed to “activist judges” who’ve agreed with their legislation.

Federal Judge Roger Benitez’ consistent rulings against California’s anti-gun laws, for example, drives California Governor Gavin Newsome nuts.

In December, Judge Benitez issued an order blocking California Senate Bill 1327 from becoming law.

SB 1327, was the state’s latest attempt to punish gun companies via litigation. As passed, it allowed individuals and families to sue gun companies, despite the federal Protection of Lawful Commerce in Firearms law. According to Newsome, it followed a Texas law regarding suits against abortion providers- and that law had been upheld in the courts.

But SB1327 added another wrinkle. It would have required plaintiffs suing to challenge the gun laws to pay the state’s attorney fees to defend them.

That, Judge Benitez ruled, was “an unprecedented attempt to thwart judicial review.”

Benitez also said it was “an abomination” and “outrageous and objectionable.” SB 1327, he said, infringed on the First Amendment right to access the courts.”

And Benitez cautioned, “with a slight amendment it could be any other constitutional right including the right to speak freely, to freedom of the press, to practice one’s religion, to restrict cruel and unusual punishment, and to be free from government taking things without compensation.”

Once again, that “thin veneer of civility” between Newsom and Benitez has been ripped off. Not that Benitez appears the least bit concerned about Newsom’s opinion.

Benitez appears more concerned with law than politics, having ruled-consistently-against the state’s proposed high-capacity firearms bans and now SB1327.

As amusing as the Benitez/Newsom feud is to follow, it points out the legislation/litigation cycle we seem mired in regarding the Second Amendment.

Legislators, especially those in states where the Supreme Court’s Bruen ruling upset their proverbial applecart of restrictions on gun ownership, continue to pass legislation they hope will slide under the Supreme Court’s scrutiny.

That’s despite the SCOTUS having made it clear they’ll apply the standard of strict scrutiny, not the lesser intermediate standard to Second Amendment restrictions.

Legislators have continued to pass measures appealing to their core constituencies that don’t pass that scrutiny. Instead, they spend countless public funds defending what are, essentially, indefensible positions.

California legislators are pushing another package of gun regulations, knowing they’ll be challenged in the courts. Their explanation: “the fact someone’s going to file a lawsuit..that’s not a reason not to move forward.”

That’s not a reason… unless you’re paying the legal fees…the legislators aren’t. They’re spending tax dollars…your money.

Over the weekend, the Second Amendment Foundation’s Alan Gottlieb was quoted in Politico about California’s persistent legislation.

His identified a key problem: “California and other states need to repeal anti-gun rights laws, not pass new ones, or we beat them in court.”

They’re neither repealing nor relenting.

Despite what the public wants -or what the courts rule, it seems politicians “gonna politic.”

Despite the obvious disconnect from reality by our politicians, we-the voters- keep sending them back to our courthouses, state houses or capital -in the apparent hope they’ll do better.

If we the people don’t require better, why should we expect better?

We’ll keep you posted.

— Jim Shepherd