Original article can be found here.
The U.S. Court of Appeals for the Fifth Circuit on November 4 denied an initial hearing en banc in Temple Gun Club v. Blanche. The court split 9-8. The denial leaves a Commerce Clause challenge to 18 U.S.C. § 922(o), the federal machine gun ban, with a three-judge panel bound by the circuit’s 1997 Knutson precedent.
Judges Andrew Oldham and James Ho dissented from that 9-8 vote. Initial en banc review would have put § 922(o) before the full court before any panel opinion issued. The Fifth Circuit refused. The case therefore proceeds in the ordinary course, and the panel remains bound by Knutson.
Section 922(o) is a federal criminal ban on transferring and possessing machineguns. Temple Gun Club’s suit tests that ban under the Commerce Clause—the enumerated power Congress invoked to pass it. Knutson is the 1997 Fifth Circuit decision that now controls the panel’s analysis of that question. A three-judge panel cannot set Knutson aside. The en banc court can. The Supreme Court can. This 9-8 order did neither.
Eight judges would have granted initial en banc hearing. Nine would not. That is as close as a federal court of appeals gets to taking a gun statute en banc and still walking away. Oldham and Ho put their names on the dissent. The majority left Temple Gun Club to argue its Commerce Clause claim to a panel that must follow 1997 law.
The Constitution does not yield to a statute, and it does not yield to circuit precedent. The Commerce Clause is a limited grant of power. It is not a federal police power. Section 922(o) criminalizes possession of a class of arms. Whether that prohibition is commerce among the several states is the question the club brought. Knutson answered it in 1997 for the Fifth Circuit. The en banc court just declined to reopen that answer at the start of the case.
The three-judge panel will now decide Temple Gun Club v. Blanche under Knutson. After that opinion, the club may petition for rehearing en banc a second time. Either party may petition the Supreme Court of the United States. A denial of initial en banc hearing is not a holding that § 922(o) is constitutional. It is a decision to let the panel go first, with 1997 precedent still on the books.
Judges swear an oath to the Constitution, not to § 922(o) and not to Knutson. So do the officials who enforce the machine gun ban. Enumerated powers come first. The right of the people to keep and bear arms is not a statutory privilege Congress can erase by calling possession “commerce.” The panel will apply Knutson next. The Constitution still sits above that case, above the statute, and above this 9-8 vote.
References
- https://www.ca5.uscourts.gov/opinions/pub/26/26-10696-CV0.pdf
- https://ammosight.com/news/fifth-circuit-2026-machine-gun-ban-en-banc-denial
- https://laws.com/news/crime/fifth-circuit-denies-en-banc-hearing-in-gun-law-case-11054287
- https://storage.courtlistener.com/recap/gov.uscourts.ca5.231388/gov.uscourts.ca5.231388.21.0.pdf
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