Reported / Citable
Background
Temple Gun Club and three individuals brought an action against federal officials concerning 18 U.S.C. § 922(o). According to Judge Andrew Oldham’s dissent from the denial of initial hearing en banc, the plaintiffs wished to modify their firearms in ways prohibited by § 922(o) and to do so through purely intrastate activity.
The plaintiffs appealed from the U.S. District Court for the Northern District of Texas and petitioned the Fifth Circuit for initial hearing en banc. A member of the court requested a poll on that petition.
The Court’s Holding
The Fifth Circuit denied the petition for initial hearing en banc under Federal Rule of Appellate Procedure 40(g) and Fifth Circuit Rule 40.2.6. Eight active judges voted to grant the petition, while nine voted against granting it. The order did not decide the merits of the plaintiffs’ Commerce Clause challenge.
Judge Oldham, joined by Judge Ho, dissented. He argued that the court should reconsider its Commerce Clause approach to § 922(o), particularly because the Fifth Circuit had agreed to rehear a Commerce Clause challenge involving 18 U.S.C. § 922(g) in United States v. Squire. He also viewed this civil action by individuals seeking to engage in allegedly intrastate conduct as a preferable vehicle for examining the constitutional issue.
Key Takeaways
- The Fifth Circuit declined to hear the appeal initially en banc.
- The en banc poll was 8–9 on whether to grant initial en banc review; the vote does not itself establish the judges’ positions on the constitutional merits.
- The order leaves the plaintiffs’ Commerce Clause arguments unresolved by the en banc court.
Why It Matters
The ruling is procedural rather than a merits decision: it determines how the appeal will proceed, not whether § 922(o) constitutionally applies to the plaintiffs’ proposed firearm modifications.
Judge Oldham’s dissent identifies the case as a potential vehicle for reconsidering the Fifth Circuit’s Commerce Clause doctrine concerning federal firearms laws, but that position did not secure the votes required for initial en banc hearing.