Two Fifth Circuit judges — both floated as potential Supreme Court nominees — just put the post-1986 machine gun ban squarely in the crosshairs on constitutional grounds that have nothing to do with the Second Amendment. That’s the real story out of United States v. Wilson, No. 24-10633 (5th Cir. Jan. 12, 2026), and it’s one I’ve been making at Second Amendment Foundation events and Gun Owners of America events for the better part of two years.
What Wilson Was Actually About
Jamaion Wilson shot and killed a man who sold him a fake firearm at a Valero gas station in Texas on May 9, 2023. He used a Palmetto State Armory handgun fitted with a Glock switch — a machine gun conversion device. Among the federal counts of conviction was possession of an unregistered post-1986 machine gun under 18 U.S.C. § 922(o), the Hughes Amendment to the Firearm Owners’ Protection Act, Pub. L. No. 99-308 (May 19, 1986).
Wilson’s lawyers challenged § 922(o) on Second Amendment grounds. The Fifth Circuit panel — a unanimous three-judge panel — rejected that challenge in a single sentence of analysis: the court is bound by Hollis v. Lynch, 802 F.3d 754 (5th Cir. 2016), which held that machine guns fall outside Second Amendment protection. Under the Fifth Circuit’s rule of orderliness, one panel cannot overrule a prior panel. So the Second Amendment argument was foreclosed before it began.
The majority opinion stated: “In sum, the Fifth Circuit’s decision in Hollis continues to bind us. And because Hollis controls, Mr. Wilson’s Second Amendment challenge to his § 922(o) conviction must fail.”
That’s not the interesting part.
Willett’s Concurrence and the Enumerated-Powers Bomb
Judge Don R. Willett — a former Texas Supreme Court justice and one of the sharpest constitutionalists on any federal appellate bench — wrote separately to flag something the Second Amendment argument couldn’t reach: § 922(o) may be unconstitutional on structural, enumerated-powers grounds.
Here’s what Willett wrote:
“The machine gun ban and the commerce power. Jamaion Wilson challenges 18 U.S.C. § 922(o), the federal machine gun ban, under only the last of these principles — i.e., the Second Amendment. As the majority explains, that challenge is foreclosed by our decision in Hollis v. Lynch. I, however, write separately to express concern that § 922(o) may also be inconsistent with the second tenet of federal criminal law, the Constitution’s principle of enumerated powers. That principle, no less than the explicit prohibitions in the Bill of Rights, is essential to the preservation of liberty.”
He went further:
“Section 922(o), in fact, has been described as a clone and the closest extant relative of the provision invalidated in United States v. Lopez, 514 U.S. 549 (1995). Both are criminal statutes that regulate the purely intrastate possession of arms, both lack a jurisdictional element — that is, they do not require federal prosecutors to prove that the firearms were possessed in or affecting interstate commerce — and in enacting both laws, Congress made no findings regarding the link between the intrastate activity regulated by these laws and interstate commerce.”
Lopez struck down the Gun-Free School Zones Act of 1990. Willett is saying § 922(o) is its twin. Judge James C. Ho joined the federalism concern expressed in the concurrence.
The Two-Pronged Constitutional Problem
Here’s the argument I’ve been hammering on, and it’s worth spelling it out clearly. For Congress to enact a federal criminal statute, it must anchor that statute in an enumerated power from U.S. Const. art. I. When it comes to § 922(o), there are only two conceivable hooks.
The first is the taxing power, art. I, § 8, cl. 1. That argument is dead on arrival. The National Firearms Act, 26 U.S.C. Chapter 53, lets you transfer a pre-1986 machine gun after paying a $200 tax and clearing ATF registration. But § 922(o) cuts that off entirely for post-1986 guns — ATF won’t accept tax payments or registration for them. There is no taxing nexus. The government collects nothing on these transactions because it has banned them outright.
The second is the Commerce Clause, art. I, § 8, cl. 3. That’s where the real fight is. Read § 922(o) as written: there is no jurisdictional element. No requirement for prosecutors to prove the gun crossed state lines, affected interstate commerce, or had any connection to the national economy. Congress simply banned possession. That is exactly what Lopez said Congress cannot do.
Then-Judge Samuel A. Alito, Jr. made this argument in dissent in United States v. Rybar, 103 F.3d 273 (3d Cir. 1996). He was outvoted 2–1. He’s now Justice Alito. And Judge Willett’s concurrence in Wilson quotes and cites that Rybar dissent directly as the doctrinal foundation.
Why This Path May Work Where the Second Amendment Argument Stalls
My read is that the enumerated-powers argument is actually the stronger near-term vehicle. The Second Amendment route requires the Supreme Court to first hold that semi-automatic rifles are constitutionally protected — and only after winning that fight would there be traction for machine guns. That sequencing is real, and it matters.
But the enumerated-powers argument doesn’t depend on what Bruen says or what the lower courts think about the “common use” test. It doesn’t require the Court to decide whether machine guns are “arms” within the meaning of the Second Amendment. It asks a simpler, structural question: did Congress have the power to enact this statute? And based on the text of § 922(o), the answer looks like no.
I suspect Justice Alito would relish the chance to vindicate his Rybar dissent. Whether the votes are there is a separate question, but two prominent Fifth Circuit judges — at least one of whom is on any serious Supreme Court shortlist — have now publicly flagged this issue. It is no longer a fringe argument. It is percolating through the federal judiciary exactly the way a serious constitutional challenge should.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.