Key Points

  • The Fifth Circuit denied a petition for initial hearing en banc in Temple Gun Club v. Blanche, a Commerce Clause challenge to the federal machine-gun ban, 18 U.S.C. § 922(o).
  • The poll failed 8 to 9: Chief Judge Elrod and Judges Smith, Higginson, Willett, Ho, Duncan, Oldham and Douglas voted in favor; Judges Jones, Stewart, Richman, Southwick, Haynes, Graves, Engelhardt, Wilson and Ramirez voted against.
  • Judge Oldham, joined by Judge Ho, dissented, arguing the court should extend the en banc Commerce Clause review it granted for § 922(g) in United States v. Squire to § 922(o), which lacks a jurisdictional hook.
  • The dissent argued that this case, brought by law-abiding plaintiffs seeking to modify firearms through purely intrastate activity, is a better vehicle than Squire, a criminal case involving a repeat felon and drug dealer.
  • The appeal comes from the U.S. District Court for the Northern District of Texas.

The full U.S. Court of Appeals for the Fifth Circuit on Wednesday declined, by a single vote, to hear at the outset a gun club's constitutional challenge to the federal machine-gun ban, 18 U.S.C. § 922(o). The club is joined by three individual plaintiffs, and the dissent treats the case as a Commerce Clause challenge.

Eight active judges voted for initial hearing en banc, and nine voted against. Chief Judge Elrod and Judges Smith, Higginson, Willett, Ho, Duncan, Oldham and Douglas were in the minority. Judges Jones, Stewart, Richman, Southwick, Haynes, Graves, Engelhardt, Wilson and Ramirez formed the majority.

The unsigned order, entered by Judges Stewart, Richman and Haynes, said the court was polled at the request of one of its members and that a majority of the judges in regular active service did not vote in favor of the petition. The order gave no reasons beyond citing the governing federal and Fifth Circuit rules, and none of the nine judges in the majority wrote separately.

The en banc court recently agreed to reconsider its approach to the Commerce Clause as applied to 18 U.S.C. § 922(g), the law barring felons from possessing firearms, in United States v. Squire, and vacated the panel opinion in that case. Judge Andrew S. Oldham, joined by Judge Ho, dissented from Wednesday's denial and argued that the court should have taken up both statutes.

Oldham opened his dissent by quoting his own earlier dissent in United States v. Wilson, a 2026 Second Amendment case in which the court declined to rehear § 922(o) en banc: "As far as I am aware, there is no historical justification for banning machine guns." He wrote that he had already called for en banc reconsideration of the court's approach to the statute. "It's regrettable that we're unwilling to do that under the Second Amendment (Wilson) or the Commerce Clause (here)," he wrote.

Oldham described § 922(g) as "the cornerstone of criminal gun law and one of the most-cited statutes in the entire United States Code," noting a law review article's report that the Bureau of Alcohol, Tobacco, Firearms and Explosives considers it a "bread-and-butter" violation. But he saw no reason for the court to stop there. "I can think of no good reason to limit our Commerce Clause work to § 922(g)," he wrote.

His first argument turned on what the dissent calls a jurisdictional hook. Section 922(g) contains a hook related to "interstate and foreign commerce," Oldham wrote, while § 922(o) does not. He acknowledged the difference might not matter, citing Justice Thomas's concurrence in United States v. Hemani, a 2026 Supreme Court decision, which argued that the hook in § 922(g) is irrelevant.

"But if it does matter, Supreme Court precedent says it makes § 922(o) more constitutionally infirm than § 922(g)," Oldham wrote, citing United States v. Lopez, decided in 1995, and United States v. Morrison, decided in 2000.

His second argument concerned the plaintiffs themselves. Oldham wrote that the court should prioritize the case "because it involves law-abiding citizens and not criminals." He described the plaintiffs as "liberty-loving enthusiasts who would like to modify their firearms in ways that § 922(o) prohibits, and they would like to do so lawfully and through purely intrastate activity."

Squire, by contrast, is a repeat felon whose convictions include possession with intent to distribute heroin, Oldham wrote. Citing the Supreme Court's 2016 decision in Taylor v. United States, he said Squire's drug dealing "unquestionably involved interstate commercial activity" and served as a predicate for his § 922(g) conviction. As a result, he wrote, "liquidating the Commerce Clause in a criminal case is more complicated than it would be here."

Oldham also questioned the order in which the court was taking up the question. "It is not obvious why we should determine the Constitution's limits on federal criminal law by focusing first on people (like Squire) who violated federal criminal law," he wrote. He quoted the article by Robert J. Cottrol and George A. Mocsary for the proposition that "Firearms laws . . . fall more harshly on peaceable citizens willing to defend themselves than on violent criminals."

Even if Squire prevails in his Commerce Clause challenge, Oldham wrote, it is "a bit 'freakish' to start—and Heaven forbid end—our constitutional exegesis with a heroin dealer." He cited Justice Alito's concurrence in the judgment in Gundy v. United States, a 2019 Supreme Court decision.

The poll split the court's active bench nearly in half. Chief Judge Elrod was among the eight judges who wanted immediate full-court review, while all three judges who entered Wednesday's order voted against it. Only Oldham and Ho put their views in writing.

The plaintiffs are Temple Gun Club Inc., Jeffrey Howard, Jason Armstrong and Clark Miracle. The defendants are Attorney General Todd Wallace Blanche; Robert Cekada, director of the ATF; and Brian Garner and Michael Weddel, the special agents in charge of the agency's Dallas and Houston field divisions, who are sued in their official capacities. The order does not recount the government's arguments or describe the district court's ruling.

The plaintiffs' appeal, No. 26-10696, comes from the U.S. District Court for the Northern District of Texas. The full court has separately granted rehearing en banc in Squire's case under § 922(g).