Courts & Legal Status: Procedural denial confirmed by court order via Justia

Fifth Circuit 8-9 Denies Initial En Banc Hearing in Machine-Gun Ban Challenge

By AFNS Research Desk · November 5, 2026 · 1 min read

John Minor Wisdom U.S. Court of Appeals Building in New Orleans, home of the Fifth Circuit (file image) — Photo: Bobak Ha'Eri / Wikimedia Commons, CC BY 3.0 (cropped)

Summary

The full Fifth Circuit voted 8 to 9 against hearing Temple Gun Club v. Blanche immediately en banc. The order is a procedural denial of fast-track full-court review of a Commerce Clause challenge to 18 U.S.C. 922(o); it is not a ruling on the merits. The appeal goes to a three-judge panel (Justia, court PDF).

Per curiam order denies the petition for initial hearing en banc after an 8-to-9 poll (Justia, Fifth Circuit PDF)
For en banc - Chief Judge Elrod and Judges Smith, Higginson, Willett, Ho, Duncan, Oldham and Douglas; against - Judges Jones, Stewart, Richman, Southwick, Haynes, Graves, Engelhardt, Wilson and Ramirez
The challenge argues that 18 U.S.C. 922(o), the federal ban on transferring and possessing machine guns, exceeds Congress's Commerce Clause power
Judge Oldham, joined by Judge Ho, dissented; the appeal now proceeds to an ordinary three-judge panel

Status: Procedural order confirmed. This is not a decision on whether 18 U.S.C. § 922(o) is constitutional.

In Temple Gun Club v. Blanche, No. 26-10696, the U.S. Court of Appeals for the Fifth Circuit on Wednesday denied a petition for initial hearing en banc (court PDF). After a poll of active judges, 8 voted in favor and 9 against. The per curiam order means the Commerce Clause challenge to the federal ban on transferring and possessing machine guns (§ 922(o)) will be heard by an ordinary three-judge panel, not the full court first.

Judges voting for initial en banc hearing were Chief Judge Elrod and Judges Smith, Higginson, Willett, Ho, Duncan, Oldham and Douglas. Voting against were Judges Jones, Stewart, Richman, Southwick, Haynes, Graves, Engelhardt, Wilson and Ramirez.

The dissent

Judge Andrew Oldham, joined by Judge James Ho, dissented from the denial. Quoting his earlier writing, he said, "As far as I am aware, there is no historical justification for banning machine guns," and argued the court should not limit its Commerce Clause reconsideration to § 922(g) in United States v. Squire. He wrote that § 922(o) lacks an interstate-commerce jurisdictional hook and is "arguably more" vulnerable under Lopez and Morrison. The denial does not decide those questions.