A Texas gun club and three gun owners have struck out in their initial attempt at getting the Fifth Circuit to decide whether the Hughes Amendment, which generally prohibits civilian possession and transfer of machine guns not lawfully possessed before May 19, 1986, is in conflict with the federal Commerce Clause. The vote was about as close as you can get, but the appellate court ultimately had a one-vote majority in favor of denying an en banc review.
The lawsuit, known as Temple Gun Club v. Blanche, isn't over, though. The plaintiffs were hoping to bypass the three-judge appellate panel that's typically the next step after a district court ruling, but that's where their appeal will now head. And given the narrow split among Fifth Circuit judges over whether to hear the case en banc, the plaintiffs could easily draw a panel that's sympathetic to their arguments.
Even if they do, however, existing circuit precedent stands in their way from simply accepting the plaintiffs' arguments. A three-judge panel can't overturn that precedent, but it could help lay the groundwork for another attempt to get the full Fifth Circuit to reconsider the issue.
Judge Andrew S. Oldham, joined by Judge James Ho, issued a written dissent to the denial of the en banc petition, arguing that as far as he's aware there is no historical tradition that justifies a modern ban on machine guns. Oldham has previously called for the court to reconsider its position on 18 U.S.C. § 922(o), but added two additional points in his dissent (citations omitted by me).
First, our en banc court recently agreed to reconsider our approach to the Commerce Clause and a different gun statute, 18 U.S.C. § 922(g). Section 922(g) prohibits felons from possessing firearms; it’s the cornerstone of criminal gun law and one of the most-cited statutes in the entire United States Code. I can think of no good reason to limit our Commerce Clause work to § 922(g).To the contrary, § 922(g) contains a jurisdictional hook related to “interstate and foreign commerce,” while § 922(o) does not. Perhaps that does not matter. But if it does matter, Supreme Court precedent says it makes § 922(o) more constitutionally infirm than § 922(g).
Second, we should prioritize this case because it involves law-abidingcitizens and not criminals. The plaintiffs in this case are liberty-loving enthusiasts who would like to modify their firearms in ways that § 922(o) prohibits, and they would like to do so lawfully and through purely intrastate activity. Squire, by contrast, is a repeat felon with convictions for possession with intent to distribute heroin among many others. Squire’s drug-dealing unquestionably involved interstate commercial activity, and that drug dealing was a predicate for his § 922(g) conviction. So even if § 922(g) is constitutionally infirm for other reasons, liquidating the Commerce Clause in a criminal case is more complicated than it would be here. Moreover, it is not obvious why we should determine the Constitution’s limits on federal criminal law by focusing first on people (like Squire) who violated federal criminal law. “Firearms laws . . . fall more harshly on peaceable citizens willing to defend themselves than on violent criminals.” After all, it is law-abiding citizens (like the plaintiffs here) who care about law in the first place. So even if a criminal like Squire prevails in his Commerce Clause challenge, you have to admit it’s a bit “freakish” to start—and Heaven forbid end—our constitutional exegesis with a heroin dealer.
Fingers crossed that Oldham, Ho, and one of the other judges who were in favor of granting en banc review in Temple Gun Club are assigned to the panel that will hear the appeal. Again, that won't guarantee that the Fifth Circuit will decide an en banc review is warranted when they get a second request, but it would at least give them the opportunity to more fully flesh out their argument in favor of revisiting the existing precedent on 922(o).
I'm not convinced we'd get a favorable ruling from the Supreme Court if the justices ultimately decide to hear Temple Gun Club, but we stand a better chance with the current makeup of the Court than we do if Democrats have a chance to replace one more of the conservative justices with progressives who believe Heller and almost every Second Amendment decision since then has been wrongly decided. The longer SCOTUS waits to take up the issue, the longer the odds of the Court concluding that the ban on machine guns violates the Second Amendment. And as Oldham notes, the plaintiffs in Temple Gun Club are much better suited to mount a constitutional challenge than someone whose criminal activity suggests they don't care much about the law to begin with.
