Fifth Circuit Splits 9-8, Turns Down Early Full-Court Hearing in Texas Gun Club's Challenge to Federal Machine Gun Ban

The U.S. Court of Appeals for the Fifth Circuit on Wednesday declined, by a single vote, to have its full bench hear from the outset a Texas gun club's challenge to the federal law that bars possessing machine guns not lawfully held before 1986.

The court's published order, filed Nov. 4 in Temple Gun Club v. Blanche, says the club's petition for initial hearing en banc was denied after a poll of the court's active judges: 8 voted in favor and 9 voted against. The case will now proceed before a regular three-judge panel.

The Digital Free Press read the four-page order, which includes a dissent from Judge Andrew S. Oldham, joined by Judge Ho.

How the Judges Voted on the Machine Gun Ban Challenge

According to the order, Chief Judge Elrod and Judges Smith, Higginson, Willett, Ho, Duncan, Oldham and Douglas voted to grant the early full-court hearing.

Judges Jones, Stewart, Richman, Southwick, Haynes, Graves, Engelhardt, Wilson and Ramirez voted against it. The order itself was entered by a panel of Judges Stewart, Richman and Haynes.

The plaintiffs are Temple Gun Club Inc. and three of its members, Jeffrey Howard, Jason Armstrong and Clark Miracle. They are appealing from the U.S. District Court for the Northern District of Texas. The defendants are Attorney General Todd Blanche and officials of the Bureau of Alcohol, Tobacco, Firearms and Explosives, including Director Robert Cekada.

The challenge targets 18 U.S.C. Section 922(o), which makes it unlawful to transfer or possess a machine gun, with an exception for machine guns lawfully possessed before the provision took effect in 1986. Oldham's dissent describes the case as a challenge brought under the Commerce Clause.

What Oldham's Dissent Argues

Oldham opened by quoting his own earlier writing in another case: "As far as I am aware, there is no historical justification for banning machine guns." He wrote that he had already called for the full court to reconsider its approach to the statute, and called it "regrettable that we're unwilling to do that under the Second Amendment (Wilson) or the Commerce Clause (here)."

He noted that the full court recently agreed to rehear a Commerce Clause question involving a different statute, Section 922(g), which bars felons from possessing firearms, in a case called United States v. Squire. Oldham wrote that Section 922(g) contains a link to "interstate and foreign commerce" while Section 922(o) does not, and that, under Supreme Court precedent, that difference "makes § 922(o) more constitutionally infirm than § 922(g)" if it matters.

Oldham also argued the court should prioritize the gun club's case because the plaintiffs are "law-abiding citizens and not criminals." He described them as people "who would like to modify their firearms in ways that § 922(o) prohibits," and who want to do so "lawfully and through purely intrastate activity." By contrast, he wrote, the defendant in Squire is "a repeat felon."

"It is law-abiding citizens (like the plaintiffs here) who care about law in the first place," Oldham wrote.

The order does not decide whether the ban is constitutional.

Sources: Order on Petition for Initial Hearing En Banc, with dissent of Judge Andrew S. Oldham, Temple Gun Club, Inc. v. Blanche, No. 26-10696 (5th Cir.), filed Nov. 4, 2026; 18 U.S.C. Section 922(o); court docket via CourtListener.