Fifth Circuit splits 9-8, denies machine gun ban hearing

As of 8:24 p.m. ET, Monday, Nov. 9, 2026

The full U.S. Court of Appeals for the Fifth Circuit has declined, by a 9-8 vote, to hear a Texas gun club's challenge to the federal ban on machine guns before a three-judge panel decides it, according to an order filed Wednesday, Nov. 4, in Temple Gun Club v. Blanche, No. 26-10696.

The order is procedural. It does not rule on whether the ban is constitutional. The order was entered by a panel of Judges Stewart, Richman and Haynes, and the appeal now goes forward before a three-judge panel.

How the judges voted

The club had petitioned for an "initial hearing en banc," asking all of the court's active judges to hear the case from the start. A judge asked for a poll, and the petition failed because a majority did not vote for it, the unsigned order said.

Chief Judge Elrod and Judges Smith, Higginson, Willett, Ho, Duncan, Oldham and Douglas voted in favor, the order shows. Judges Jones, Stewart, Richman, Southwick, Haynes, Graves, Engelhardt, Wilson and Ramirez voted against.

The dissent

Judge Andrew S. Oldham, joined by Judge Ho, dissented. He wrote that he had already called for the court to reconsider its approach to the machine gun statute, 18 U.S.C. § 922(o), in an earlier Second Amendment case, United States v. Wilson. "It's regrettable that we're unwilling to do that under the Second Amendment (Wilson) or the Commerce Clause (here)," he wrote.

Oldham noted that the full court recently agreed to rehear a Commerce Clause challenge to a different gun law, the felon-in-possession ban in § 922(g). "I can think of no good reason to limit our Commerce Clause work to § 922(g)," he wrote. He argued that because § 922(o) lacks the interstate-commerce element found in § 922(g), Supreme Court precedent would make the machine gun ban "more constitutionally infirm." He also said the court should prioritize a case brought by law-abiding plaintiffs rather than a criminal defendant.

The case

The Temple Gun Club and three of its members sued in federal court in Fort Worth on March 10, represented by the Texas Public Policy Foundation's Center for the American Future. They argue that Congress exceeded its Commerce Clause power by banning possession of machine guns not lawfully possessed before May 19, 1986, according to the foundation. The members say they own firearms that could be converted and want to acquire or make newer machine guns. The defendants are Attorney General Todd Blanche and federal firearms officials, the order shows.

The lawsuit asks the courts to reconsider a 1997 Fifth Circuit decision, United States v. Knutson, which upheld § 922(o) under the Commerce Clause, according to the foundation. The district court granted the government's motion to dismiss and entered final judgment on July 22, and the club appealed, court records show. The district court docket still lists the case under the name of the previous attorney general, Pam Bondi.

The case is separate from the Fifth Circuit's recent ruling on interstate handgun sales. Read GROKsiNEWS.com's coverage of that case: Fifth Circuit interstate handgun sales ruling.