Temple Gun Club v. Blanche
CourtCourt of Appeals for the Fifth Circuit
Date FiledNovember 4, 2026
Docket26-10696
StatusPublished
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Full Opinion
Case: 26-10696 Document: 39-1 Page: 1 Date Filed: 11/04/2026
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 4, 2026
No. 26-10696 Thomas B. Plunkett, III
____________ Clerk
Temple Gun Club, Incorporated; Jeffrey Howard; Jason
Armstrong; Clark Miracle,
Plaintiffs—Appellants,
versus
Todd Wallace Blanche, U.S. Attorney General; Robert
Cekada, Director, U.S. Bureau of Alcohol, Tobacco, Firearms, and
Explosives; Brian Garner, in his official capacity as Special Agent in
Charge of the Dallas Field Division of the Bureau of Alcohol, Tobacco, Firearms
and Explosives; Michael Weddel, in his official capacity as Special Agent
in Charge of the Houston Field Division of the Bureau of Alcohol, Tobacco,
Firearms and Explosives,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:26-CV-265
______________________________
Case: 26-10696 Document: 39-1 Page: 2 Date Filed: 11/04/2026
No. 26-10696
ON PETITION FOR INITIAL HEARING EN BANC
Before Stewart, Richman, and Haynes, Circuit Judges.
Per Curiam:
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 (FED. R. APP. P. 40(g) and 5TH CIR. R. 40.2.6).
In the en banc poll, 8 judges voted in favor of initial hearing en banc
(Chief Judge Elrod and Judges Smith, Higginson, Willett,
Ho, Duncan, Oldham, and Douglas), and 9 voted against (Judges
Jones, Stewart, Richman, Southwick, Haynes, Graves,
Engelhardt, Wilson, and Ramirez).
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No. 26-10696
Andrew S. Oldham, Circuit Judge, joined by Ho, Circuit Judge,
dissenting from the denial of initial hearing en banc:
“As far as I am aware, there is no historical justification for banning
machine guns.” United States v. Wilson, 174 F.4th 474, 479 (5th Cir. 2026)
(Oldham, J., dissenting from the denial of rehearing en banc). So I have
already called for en banc reconsideration of our court’s approach to 18
U.S.C. § 922(o). See ibid. It’s regrettable that we’re unwilling to do that
under the Second Amendment (Wilson) or the Commerce Clause (here).
I write separately today to make two additional points.
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). See
United States v. Squire, 177 F.4th 614 (5th Cir.), reh’g en banc granted, opinion
vacated, 182 F.4th 481, 481–82 (5th Cir. 2026) (en banc) (per curiam).
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. See Robert J. Cottrol & George A. Mocsary, Guns, Bird Feathers,
and Overcriminalization: Why Courts Should Take the Second Amendment
Seriously, 14 Geo. J.L. & Pub. Pol’y 17, 38 (2016) (noting ATF
considers § 922(g) its “‘bread-and-butter’ violation” (quotation omitted)).
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. See United States v. Hemani, 608 U.S. 772, 799–802 (2026)
(Thomas, J., concurring) (arguing the presence of a jurisdictional hook in
§ 922(g) is irrelevant). But if it does matter, Supreme Court precedent says
it makes § 922(o) more constitutionally infirm than § 922(g). See United
States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598
(2000).
Second, we should prioritize this case because it involves law-abiding
citizens and not criminals. The plaintiffs in this case are liberty-loving
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No. 26-10696
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. See Squire, 177 F.4th at
616 (listing the felonies). Squire’s drug-dealing unquestionably involved
interstate commercial activity, see Taylor v. United States, 579 U.S. 301, 307
(2016), 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.” Cottrol & Mocsary, supra, at 46. 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. Cf. Gundy v. United States, 588
U.S. 128, 149 (2019) (Alito, J., concurring in the judgment).
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