Last updated November 2026 · By Nick Hall, tracks every federal machine gun and NFA case in the Fifth Circuit for USA Gun Shop readers
Quick take: The Fifth Circuit voted 9-8 on November 4 not to let its full bench hear the Temple Gun Club challenge to the federal machine gun ban before a three-judge panel does. The case isn’t over and nothing about the ban changed, but eight judges just said they wanted to take it now.
- Ruling: The court denied a petition for initial hearing en banc in Temple Gun Club, Inc. v. Blanche, No. 26-10696, after a poll of 8 in favor and 9 against.
- Court: The U.S. Court of Appeals for the Fifth Circuit, which hears appeals from federal courts in Louisiana, Mississippi and Texas.
- Why it matters: The suit argues Congress had no Commerce Clause power to ban simple possession of post-1986 machine guns, and a Fifth Circuit precedent from 1997 stands in the way.
- What’s next: The appeal stays with a panel of Judges Stewart, Richman and Haynes, and the machine gun ban remains fully enforceable in the meantime.
The federal gun-power case the full Fifth Circuit already agreed to rehear stars a repeat felon. This one was brought by a Texas gun club whose complaint says it doesn’t accept members who are prohibited from having guns, and it doesn’t rest on the Second Amendment at all. We pulled the order and the dissent so you don’t have to.
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Table of Contents
What the Fifth Circuit Actually Decided
The four-page order is a per curiam ruling from the panel of Judges Stewart, Richman and Haynes, filed November 4, 2026. 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 order lists the vote by name. Voting to hear the case en banc 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.
Eight to nine. One vote short, out of 17 active judges.
And here’s the kicker: all three judges on the panel that will hear the appeal voted against sending it up. That doesn’t tell you how they’ll rule on the merits, but it does tell you who decides the next round.
The Temple Gun Club Machine Gun Ban Challenge
Temple Gun Club, a Texas nonprofit based in Temple, Bell County, sued in the Northern District of Texas on March 10, 2026, in case No. 4:26-cv-00265. Its complaint says the club “has more than 1,000 members across the State of Texas,” and three members joined as plaintiffs: Jeffrey Howard, Jason Armstrong and Clark Miracle. The suit was first captioned against Pamela Bondi, and the case now names Todd Wallace Blanche as U.S. Attorney General.
The target is 18 U.S.C. § 922(o), which says “it shall be unlawful for any person to transfer or possess a machinegun,” with exceptions for government use and guns lawfully possessed before the ban took effect. In practice that date is May 19, 1986, so the complaint calls the guns at issue “post-1986 machineguns.”
The argument isn’t about the right to bear arms. It’s about federal power. The plaintiffs say the Commerce Clause lets Congress regulate interstate commerce, and owning a machine gun you built in your own shop in Texas isn’t that. They want a declaration that 922(o) is unconstitutional “on its face and as applied” and an injunction protecting the club and its members.
The complaint is candid about the obstacle. The plaintiffs concede that United States v. Knutson, a 1997 Fifth Circuit decision upholding 922(o), “forecloses their enumerated powers theory,” and call the case “a proper vehicle for the en banc Fifth Circuit to revisit Knutson.” A three-judge panel is bound by Knutson. The full court is not. That is the whole reason they asked to skip the panel.
Why Judge Oldham’s Dissent Is the Part to Read
Judge Andrew S. Oldham, joined by Judge Ho, dissented from the denial. He opens by quoting himself: “As far as I am aware, there is no historical justification for banning machine guns.” That line comes from his dissent when the court refused to rehear United States v. Wilson en banc earlier in 2026, a Second Amendment challenge to the same statute.
So this is the second time this year the full court has passed on 922(o). “It’s regrettable that we’re unwilling to do that under the Second Amendment (Wilson) or the Commerce Clause (here),” Oldham wrote.
His first point is consistency. The en banc Fifth Circuit has already agreed to rehear United States v. Squire, a Commerce Clause challenge to 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, adding that 922(g) at least mentions interstate commerce in its text while 922(o) does not.
His second point is about who brings the case. Squire, Oldham notes, is a repeat felon with heroin distribution convictions. The Temple plaintiffs are, in his words, “liberty-loving enthusiasts” who want to do it “lawfully and through purely intrastate activity.” His conclusion: “we should prioritize this case because it involves law-abiding citizens and not criminals.”
What This Vote Does Not Do
It doesn’t uphold the machine gun ban, and it doesn’t strike it. The order is a procedural ruling on who hears the appeal first. Nobody wrote a word on the merits except the two dissenters.
It doesn’t end the case. The appeal from the Northern District of Texas stays alive in front of the Stewart, Richman and Haynes panel, and the losing side there can still ask the full court for rehearing under Federal Rule of Appellate Procedure 40, or take it to the Supreme Court.
It doesn’t change anything at the gun counter. Section 922(o) is in force in all 50 states, and ATF’s October 9 open letter on the NFA, the one that stopped enforcing registration for suppressors and SBRs, says “all NFA provisions still apply to machineguns and destructive devices.” Our Glock switch explainer walks through what a conversion part still means legally.
If you live in Texas, Louisiana or Mississippi, nothing about your rights changed on November 4. If you live anywhere else, this circuit still can’t bind you, though a Fifth Circuit win would set up a split the Supreme Court would have a hard time ignoring.
Where the Machine Gun Ban Fight Goes Next
Watch Squire. If the en banc court narrows Congress’s Commerce Clause power over gun possession in a felon case, the Temple panel will have to deal with that reasoning, and a petition to rehear Temple en banc after the panel rules gets a lot more interesting with eight votes already on the record.
Watch the Fifth Circuit’s recent run, too. The same court struck the federal ban on interstate handgun sales in September and the federal Switchblade Act in October, both on Second Amendment grounds. Machine guns are a harder sell under that test, which is why this suit argues federal power instead.
If one judge had flipped, the full court would be hearing a challenge to the 1986 machine gun freeze right now. It didn’t happen. But eight judges on the record is not a small number.
Frequently Asked Questions
Did the Fifth Circuit strike down the federal machine gun ban?
No. On November 4, 2026, the Fifth Circuit voted 9-8 against hearing Temple Gun Club v. Blanche en banc before a three-judge panel decides it. That is a procedural ruling. 18 U.S.C. 922(o) remains in force and fully enforceable.
What is Temple Gun Club v. Blanche?
It is a lawsuit filed March 10, 2026 in the Northern District of Texas by Temple Gun Club and three of its members. It argues that Congress exceeded its Commerce Clause power when it banned possession of machine guns not lawfully possessed before May 19, 1986. The appeal is Fifth Circuit No. 26-10696.
What does initial hearing en banc mean?
Federal appeals are heard first by three-judge panels. An initial hearing en banc skips that step and puts the case straight in front of every active judge on the circuit. The Fifth Circuit has 17 active judges, and a majority has to vote yes.
Which judges voted to hear the machine gun case en banc?
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.
Why is the Temple Gun Club case about the Commerce Clause and not the Second Amendment?
The plaintiffs argue that Congress has no enumerated power to ban simply possessing a machine gun that was built and kept inside one state. A 1997 Fifth Circuit decision, United States v. Knutson, upheld 922(o) under the Commerce Clause, and the complaint concedes that decision forecloses the argument unless the full court revisits it.
Can I legally own a machine gun now?
Only under the same rules as before. Federal law bans possession of machine guns that were not lawfully possessed before May 19, 1986, outside government use. Pre-1986 transferable machine guns still go through the full NFA process, and ATF says all NFA provisions still apply to machine guns.
What happens next in the Temple Gun Club appeal?
The appeal stays with the panel of Judges Stewart, Richman and Haynes. After the panel rules, the losing side can ask the full Fifth Circuit for rehearing or petition the Supreme Court. The en banc Fifth Circuit is separately reconsidering a Commerce Clause challenge to 922(g) in United States v. Squire.
Related Reading
- What Is a Glock Switch? The Law, Penalties and 2026 Data
- What Is the National Firearms Act? NFA Explained
- Where to Buy a Tommy Gun: Thompson Submachine Gun Guide
- Fifth Circuit Rules Federal Switchblade Ban Unconstitutional
- Fifth Circuit Strikes Federal Interstate Handgun Sales Ban
- Texas Gun Laws (2026): Constitutional Carry, LTC and Castle Doctrine
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