On November 4, 2026, the U.S. Court of Appeals for the Fifth Circuit voted 9-8 against hearing a Texas gun club’s challenge to the federal machine gun ban as a full court. The order itself is brief. The dissent, and the way the judges’ votes have moved since April, matter more than the result.
A Texas shooting club and three of its members asked the full U.S. Court of Appeals for the Fifth Circuit to skip the usual three-judge panel and decide at once whether Congress had the power, in 1986, to ban private possession of new machine guns. On November 4, 2026, the court said no, by a single vote. According to the order in Temple Gun Club, Inc. v. Blanche, No. 26-10696, eight active judges voted in favor of initial hearing en banc (a first hearing before all of the court’s active judges) and nine voted against.
The case is not about the Second Amendment. It is a challenge under the Commerce Clause. The plaintiffs argue that 18 U.S.C. § 922(o), the provision added by the Firearm Owners Protection Act of 1986 that bars possession of machine guns made after May 19, 1986, regulates simple possession and not interstate commerce, so it is outside Congress’s enumerated powers. The Fifth Circuit rejected that argument in 1997. The plaintiffs concede that this precedent binds any three-judge panel, which is why they asked the full court to hear the case first.
What the court did on November 4
The order was entered by a panel of Judges Carl Stewart, Priscilla Richman and Catharina Haynes. Its operative sentence reads: “The petition for initial hearing en banc is DENIED because, at the request of one of its members, the court was polled, and a majority of the circuit judges in regular active service did not vote in favor of initial hearing en banc.”
The roll call is printed in the order. Voting to hear the case as a full court were Chief Judge Jennifer Walker Elrod and Judges Jerry Smith, Stephen Higginson, Don Willett, James Ho, Kyle Duncan, Andrew Oldham and Dana Douglas. Voting against were Judges Edith Jones, Stewart, Richman, Leslie Southwick, Haynes, James Graves, Kurt Engelhardt, Cory Wilson and Irma Carrillo Ramirez.
The split does not follow party lines. The eight “yes” votes came from appointees of Presidents Reagan, George W. Bush, Obama, Trump and Biden. The nine “no” votes came from appointees of Presidents Reagan, Clinton, George W. Bush, Obama, Trump and Biden.
Judge Oldham, joined by Judge Ho, dissented. No judge wrote to explain a vote against. Law360 and Bearing Arms reported the vote on November 5. Outside legal and firearms outlets, RSN found little coverage.
What most coverage misses
Seen alone, a 9-8 procedural denial looks like a near miss. Set beside an earlier vote on the same statute, it shows something more specific. On April 30, 2026, the court voted 10-7 against rehearing United States v. Wilson, a criminal appeal in which a defendant challenged § 922(o) under the Second Amendment. The April order lists Judges Jones, Smith, Graves, Ho, Duncan, Engelhardt and Oldham as voting for rehearing.
RSN compared the two roll calls. All 17 active judges voted both times. Ten voted the same way twice. Seven changed sides. Chief Judge Elrod and Judges Higginson, Willett and Douglas voted against rehearing in April but for initial hearing in November. Judges Jones, Graves and Engelhardt moved the other way.
RSN analysis: the switches cannot be read as votes on whether the ban is constitutional. The two polls asked different questions about different kinds of case: whether to rehear a criminal defendant’s Second Amendment appeal after a panel had ruled, and whether to take a civil Commerce Clause suit before any panel had ruled. A judge can doubt the statute and still oppose skipping the panel.
Judge Jones is an example of why the votes need care. In 1997, in United States v. Kirk, she wrote that “[p]rivate possession of a machinegun does not involve a market activity,” according to the plaintiffs’ complaint, which quotes her separate opinion. She voted against the November petition anyway. The order gives no reason.
The record does show this: judges who wrote in April that the court’s precedent was doubtful but that Wilson was the wrong case have now been given a case built to avoid those objections. Several of them voted to hear it.
Background: the 1986 ban and the Fifth Circuit’s precedents
Machine guns have been subject to federal registration and tax under the National Firearms Act since 1934. The outright ban on newly made machine guns came later. According to the complaint, Representative William Hughes of New Jersey offered it on the House floor as an amendment to the Firearm Owners Protection Act. “The Hughes Amendment passed by voice vote,” the complaint states (complaint, para. 67). The complaint also quotes the Fifth Circuit’s own 1993 observation that “[t]here is no committee report, and sparse legislative history” behind the provision (complaint, para. 65).
The statute allows machine guns lawfully possessed before May 19, 1986, to remain in private hands. In practice, the complaint says, “it is illegal for individuals to possess any machinegun manufactured after May 19, 1986” (complaint, para. 70). The complaint cites a penalty of up to ten years in prison and a $10,000 fine (complaint, para. 71). Citing Bureau of Justice Statistics data, it says 451 people were charged with § 922(o) violations in 2023 (complaint, para. 77).
Two Fifth Circuit precedents stand in the way of challenges to the ban. In United States v. Knutson, 113 F.3d 27 (1997), the court upheld § 922(o) as an exercise of the commerce power. The complaint quotes Knutson‘s reasoning that “the vast majority of machinegun possessions constitute the culminating step in interstate commercial transactions” (complaint, para. 147). In Hollis v. Lynch, 827 F.3d 436 (2016), the court held that machine guns are “dangerous and unusual” weapons outside the Second Amendment’s protection.
Both precedents came under criticism in Wilson. A panel ruled against the defendant in January 2026, holding that it was still bound by Hollis. When the full court declined rehearing in April, Judge Willett, joined by Chief Judge Elrod and Judge Duncan, wrote that Knutson and Hollis were each questionable: “Both holdings are dubious.” On the “unusual” prong, Willett cited a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) statistic: “As of June 2025, the total number of machineguns in the [National Firearms Registration and Transfer Record] is approximately 2,382,403.” The opinion gives only that total and does not say how many of the registered guns are in private civilian hands.
Willett still voted against rehearing. He explained that “future panels—including the panel here—remain bound by Knutson and Hollis,” and that he “would welcome en banc review to determine whether § 922(o) exceeds constitutional limits” in “an appropriate case.” He gave two reasons Wilson was not that case. The defendant never raised an enumerated-powers argument. His Second Amendment claim, though labeled as-applied, was facial in substance, because “possession of machineguns is all that § 922(o) regulates.”
The lawsuit: a case built for the full court
Temple Gun Club appears to have been drafted with those objections in mind. Lawyers from the Texas Public Policy Foundation (Robert Henneke, Chance Weldon and Eric Heigis) filed it on March 10, 2026, in the U.S. District Court for the Northern District of Texas, Fort Worth Division, as case No. 4:26-cv-00265. The original defendants were then-Attorney General Pam Bondi, the acting ATF director and two ATF special agents in charge. By the time of the November order, the caption named Attorney General Todd Blanche and ATF Director Robert Cekada.
The plaintiffs are the Temple Gun Club, a Bell County nonprofit incorporated in 1963 “to promote sportsmanship and safety in the use of firearms” that says it has more than 1,000 members across Texas, and three individuals. Jeffrey Howard of Belton is an Army veteran who, according to the complaint, retired as a sergeant major in 2002. Jason Armstrong of Belton is a retired firefighter and paramedic who runs a gunsmithing business and holds a federal firearms license. Clark Miracle lives in Fort Worth. The complaint says each has no felony record and is not barred from owning firearms.
The complaint pleads a single count, which alleges that § 922(o) exceeds Congress’s enumerated powers under Article I. It does not plead a Second Amendment claim. It argues that “[p]rohibiting mere possession of machineguns does not regulate a channel or instrumentality of interstate commerce” (complaint, para. 117). The intrastate facts are concrete. Some club members own an AR-15 made in San Antonio whose receiver, the complaint says, could be converted to automatic fire by milling and adding parts (complaint, para. 9). The complaint says gunsmith members own the milling equipment needed and want to do the work.
The complaint is open about its purpose. “Plaintiffs acknowledge that United States v. Knutson … forecloses their enumerated powers theory,” it says. “This case provides a proper vehicle for the en banc Fifth Circuit to revisit Knutson and its progeny.” It closes the count with: “Knutson bears reconsideration en banc” (complaint, para. 153). In an April 29 commentary, Heigis wrote that the suit “admittedly faces an uphill battle, as binding Fifth Circuit precedent has upheld § 922(o) against prior constitutional challenges.” He put the core objection this way: “The problem is that a person can be convicted under § 922(o) without ever proving any connection to interstate commerce.”
Inside the dissent
Judge Oldham’s dissent is two pages long. It opens by repeating his April position: “As far as I am aware, there is no historical justification for banning machine guns.” He then turns to the Commerce Clause: “It’s regrettable that we’re unwilling to do that under the Second Amendment (Wilson) or the Commerce Clause (here).”
His first point concerns consistency. The full court has already agreed to reconsider the Commerce Clause basis for a different gun statute, the felon-in-possession law at 18 U.S.C. § 922(g), in United States v. Squire. “I can think of no good reason to limit our Commerce Clause work to § 922(g),” Oldham wrote. He also noted a textual difference: “§ 922(g) contains a jurisdictional hook related to ‘interstate and foreign commerce,’ while § 922(o) does not.”
He acknowledged that the difference may not matter, citing a concurrence by Justice Clarence Thomas in United States v. Hemani (2026). “But if it does matter,” he wrote, “Supreme Court precedent says it makes § 922(o) more constitutionally infirm than § 922(g),” citing United States v. Lopez (1995), which struck down the Gun-Free School Zones Act, and United States v. Morrison (2000).
His second point concerns the choice of case. “[W]e should prioritize this case because it involves law-abiding citizens and not criminals,” he wrote. He contrasted the plaintiffs, who “would like to do so lawfully and through purely intrastate activity,” with the Squire defendant, whom he described as “a repeat felon with convictions for possession with intent to distribute heroin.” His closing line: “you have to admit it’s a bit ‘freakish’ to start—and Heaven forbid end—our constitutional exegesis with a heroin dealer.”
This argument has some weight. Constitutional limits on federal criminal law have often been tested by people already charged with crimes. An earlier RSN analysis of a 2016 Seventh Circuit gun case made a related point: rulings in cases brought by unsympathetic defendants can shape the rights of everyone else. A civil plaintiff who has never been charged lets a court consider the question without a criminal conviction at stake.
The case against: the ban, and against moving faster
The other side has substantial arguments, and readers should weigh them.
The Supreme Court’s Commerce Clause cases cut both ways. Lopez and Morrison limited the commerce power. In Gonzales v. Raich (2005), however, the Supreme Court held that Congress could prohibit marijuana grown and used entirely within one state because it was part of a broader regulated national market. The government can argue that machine guns, like marijuana, are a fungible commodity in a national market Congress may regulate, so that allowing intrastate manufacture would undercut the scheme. Knutson‘s point that most machine gun possession is “the culminating step in interstate commercial transactions” belongs to the same line of reasoning.
The complaint answers that “nearly every item bought or sold in the modern age is the culminating step of an interstate—and often global—supply chain” (complaint, para. 148). That disagreement is the center of the case, and the Fifth Circuit has not resolved it.
Other circuits have upheld the ban. In April, Judge Willett’s opinion cited United States v. Charles (8th Cir. 2025) as “rejecting a facial challenge to § 922(o) because it covers weapons systems mounted on warships, military helicopters, and armored military vehicles.” Judge Oldham acknowledged that “distinguished jurists have reached different conclusions about the constitutionality of this statute,” citing an April 2026 Eleventh Circuit decision.
The normal process exists for a reason. Initial hearing en banc is rare. A three-judge panel bound by Knutson will almost certainly rule against the plaintiffs, but its opinion would give the full court a decided case and a developed record to review. Judges who voted no may have concluded that the court should first hear the government fully, or decide Squire first and then apply that ruling here.
Public safety critics see the votes as a warning. After the April vote, People For the American Way’s Paul Gordon wrote that the denial “was only a temporary victory for reasonable laws against gun violence,” and that the ban’s future was in doubt “with the Trump judges making a dramatic change in the law possible.” The November roll call complicates the partisan framing: two Trump appointees voted against initial hearing, and an Obama appointee and a Biden appointee voted for it.
Even supporters are cautious about the Supreme Court. Writing at Bearing Arms, Cam Edwards said he is “not convinced we’d get a favorable ruling from the Supreme Court if the justices ultimately decide to hear Temple Gun Club.”
RSN could not locate the Justice Department’s filings on the petition, and the order does not state the government’s position. Readers should not assume how the current administration has argued the case.
What is established, disputed and not established
Established (from the court’s own orders and the complaint):
- On November 4, 2026, the Fifth Circuit denied initial hearing en banc in Temple Gun Club v. Blanche, No. 26-10696, by 9 votes to 8.
- Judge Oldham, joined by Judge Ho, dissented. No judge wrote in support of the denial.
- On April 30, 2026, the court denied rehearing en banc in United States v. Wilson by 10 votes to 7. Seven judges voted differently in the two polls.
- The complaint raises only an enumerated-powers (Commerce Clause) claim and concedes that Knutson (1997) binds a three-judge panel.
Disputed:
- Whether banning possession of a machine gun made and kept within one state is a regulation of interstate commerce. Knutson and Raich-style reasoning say yes. Lopez, Morrison and the plaintiffs say no.
- Whether machine guns are “unusual” under the Supreme Court’s Second Amendment test, given the ATF registry total of about 2.38 million. That question belongs to Hollis, not to this case.
Not established:
- Why any judge voted as they did. Only Judges Oldham and Ho explained their votes.
- That the eight “yes” votes are votes to strike the ban. A vote to hear a case is not a vote on the merits.
- What the district court ruled and what the Justice Department argued. The November order does not say, and RSN could not obtain those filings.
- How many of the roughly 2.38 million registered machine guns are held by private citizens, as opposed to dealers or other holders.
What happens next
According to Bearing Arms, the appeal now goes to a three-judge panel. Unless something changes, that panel must follow Knutson. The plaintiffs can then ask for rehearing en banc after the panel rules, a route the denial does not foreclose. Meanwhile, the full court’s decision in Squire on the Commerce Clause basis of § 922(g) could change the analysis in either direction. The federal-state question is an old one. In 2013 RSN covered the Missouri House’s vote to override a veto of a bill to nullify federal gun laws, a legislative route. Temple Gun Club takes a different one: asking a federal court to enforce limits on Congress’s powers.
Courts elsewhere are being asked similar questions about where government power ends. RSN has reported a Philadelphia ruling on ICE detainer preemption and a Fourth Circuit decision striking West Virginia’s Daniel’s Law.
What accountability would look like
- Judges who voted no should say why. When a court splits 9-8 on a question several of its members have publicly called open, a short statement explaining the vote would help litigants and the public.
- The Justice Department should state its position publicly. Whether the administration defends § 922(o) on the merits, and on what theory, is a policy choice that voters are entitled to know.
- ATF should publish a breakdown of its registry. The 2.38 million figure is now cited in judicial opinions. A public breakdown by type of holder (private individual, licensed dealer, manufacturer, other) would let courts and citizens test the “unusual” question with real data.
- Congress should act on the record. The 1986 ban was added on the House floor by voice vote with, in the Fifth Circuit’s 1993 words, “sparse legislative history.” If Congress wants it to survive on Commerce Clause grounds, it can hold hearings, make findings, or add an interstate-commerce element, as § 922(g) already has.
Sources: Fifth Circuit order, Temple Gun Club v. Blanche, No. 26-10696 (Nov. 4, 2026); Fifth Circuit order, United States v. Wilson, No. 24-10633 (Apr. 30, 2026); Complaint, Temple Gun Club v. Bondi, No. 4:26-cv-00265 (N.D. Tex., filed Mar. 10, 2026); Eric Heigis, Texas Public Policy Foundation (Apr. 29, 2026); Paul Gordon, People For the American Way (May 4, 2026); Cam Edwards, Bearing Arms (Nov. 5, 2026); Law360 (Nov. 5, 2026).
Image: John Minor Wisdom U.S. Court of Appeals Building, New Orleans, home of the Fifth Circuit. Photo by Ktkvtsh, licensed under CC BY 4.0, via Wikimedia Commons.
How this article was made: Right Side News researched and drafted this article with the help of AI tools. Sources are linked so readers can check them. Spot an error? Tell us in the comments and we will correct it.
