Fifth Circuit Splits 9 to 8, Denies Full-Court Hearing on Machine Gun Ban Challenge

The U.S. Court of Appeals for the Fifth Circuit on November 4, 2026, declined by a 9 to 8 vote to send a Commerce Clause challenge to the federal machine gun ban straight to its full bench. The order in Temple Gun Club v. Blanche, No. 26-10696, denies the plaintiffs’ petition for initial hearing en banc and leaves the appeal with a three-judge panel that is bound by the court’s 1997 precedent upholding 18 U.S.C. section 922(o).

Chief Judge Elrod and Judges Smith, Higginson, Willett, Ho, Duncan, Oldham and Douglas voted to hear the case en banc. Judges Jones, Stewart, Richman, Southwick, Haynes, Graves, Engelhardt, Wilson and Ramirez voted against. The panel assigned to the appeal is Judges Stewart, Richman and Haynes, all three of whom voted no.

Judge Andrew Oldham, joined by Judge James Ho, dissented from the denial. “It’s regrettable that we’re unwilling to do that under the Second Amendment (Wilson) or the Commerce Clause (here),” he wrote of reconsidering the court’s treatment of section 922(o). He noted that the full court has already agreed to rehear United States v. Squire, a Commerce Clause challenge to the felon-in-possession statute, section 922(g), and wrote: “I can think of no good reason to limit our Commerce Clause work to section 922(g).” Section 922(g) carries an interstate commerce element and section 922(o) does not, which under Lopez and Morrison makes the machine gun ban “more constitutionally infirm,” the dissent says. Oldham added that the plaintiffs are law-abiding citizens while Squire is a repeat felon with heroin-distribution convictions, and that “it is law-abiding citizens (like the plaintiffs here) who care about law in the first place.”

Temple Gun Club, a Texas nonprofit based in Temple with more than 1,000 members, sued on March 10, 2026, in the Northern District of Texas, Fort Worth Division, with its president Jeffrey Howard, an Army veteran from Belton, and members Jason Armstrong and Clark Miracle of Fort Worth. The complaint, filed by the Texas Public Policy Foundation’s Center for the American Future, argues that section 922(o) bans possession of any machine gun not lawfully possessed by May 19, 1986, “regardless of whether the firearm has ever crossed state lines or entered a channel of interstate commerce,” and that the Commerce Clause gives Congress no such power. A violation carries up to ten years in prison. Some members own Sons of Liberty AR-15 rifles made in San Antonio, and gunsmith members with milling equipment would convert them to automatic fire if the ban fell, the complaint says.

The complaint concedes that United States v. Knutson, the Fifth Circuit’s 1997 per curiam decision, forecloses the theory before a panel, and says the case “provides a proper vehicle for the en banc Fifth Circuit to revisit Knutson and its progeny.” The government moved to dismiss on May 29, the district court docket closed with entries on July 22 and 23, and the Fifth Circuit docketed the appeal in early August. A foundation case page still lists the matter as pending.

The vote tracks an earlier split. On April 30, 2026, the court voted 10 to 7 against rehearing United States v. Wilson, a Second Amendment challenge to section 922(o) by a defendant convicted under it. Judge Don Willett, joined by Chief Judge Elrod and Judge Duncan, wrote then that “in an appropriate case, I would welcome en banc review,” and Oldham wrote that “there is no historical justification for banning machine guns.” Wilson’s petition for Supreme Court review, No. 26-5198, was docketed July 31 and distributed for the justices’ September 28 conference, and the docket showed no ruling on it as of November 4.

The Temple Gun Club appeal now returns to the Stewart, Richman and Haynes panel, which remains bound by Knutson, and a ruling against the club would open the way to a petition for rehearing en banc or for Supreme Court review. No argument date was posted as of November 4, 2026, and the next step is the panel’s decision.