Major news out of the Fifth Circuit. By a 10-7 vote, the en banc court declined to rehear United States v. Wilson, No. 24-10633, leaving in place the panel decision upholding the federal machine gun ban under 18 U.S.C. § 922(o). Wilson used a Glock switch to convert a handgun into a machine gun and killed someone. The panel, bound by Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016), affirmed his conviction. Seven judges wanted the case reheard en banc — likely to overturn Hollis. Ten said no. Here is the part that will surprise some viewers: I think the ten got it right — not because § 922(o) is constitutional in every application, but because the Second Amendment movement cannot afford to win this case at the wrong time.
The Vote, the Concurrence, and the Dissent
Judge Don Willett, joined by Chief Judge Jennifer Walker Elrod, concurred in the denial of rehearing in a way that reads less like a defense of § 922(o) than an invitation for a cleaner vehicle:
“By enumerating both powers and rights, the framers embraced a belt and suspenders constitution. They denied Congress the power to enact a comprehensive criminal code and for added security, they hard-coded some liberties, including the right of the people to keep and bear arms into the constitution itself. The design was straightforward. If the enumerated powers belt slipped, the enumerated right suspenders would still hold.”
They went further on the merits:
“Mere possession of a firearm fits uneasily with the Supreme Court’s three recognized categories of commerce regulation. … Although the Supreme Court has offered only minimal guidance for determining whether a weapon is dangerous and unusual, it is hard to see how millions of machine guns registered with a BATF make them in any sense unusual.”
I have to push back on the “millions” figure. By my count, there are roughly 160,000 transferable civilian machine guns in this country — every one registered before May 19, 1986, when the Hughes Amendment slammed the door. The rest sit with law enforcement, dealers, and manufacturers, not private civilians. That distinction matters when we argue “common use.”
Oldham and Ho — Auditioning for the Supreme Court
The dissents read like Supreme Court audition tapes. Judge Andrew Oldham and Judge James Ho are on the short list for the next vacancy, along with Judge David Stras (8th Cir.) and Judge Lawrence VanDyke (9th Cir.). Both Oldham and Ho, in my view, would be excellent additions to the Court.
Judge Oldham, joined by Judge Ho, did not pull punches:
“Our court’s approach to the Second Amendment is historically bankrupt. As far as I am aware, there is no historical justification for banning machine guns. To the contrary, repeating arms have existed since the 15th century, and numerous different repeating arms existed at the American founding. Meriwether Lewis famously carried one, the Girardoni air rifle on the Lewis and Clark expedition. And despite the prevalence of repeating arms, literally no jurisdiction banned them. There were no prohibitions on any particular type of arm, ammunition, or accessory in the English colony that later became an American state. The only restriction in the English colonies involving specific arms was a handgun and knife carry restriction enacted in the Quaker-owned East New Jersey in 1686.”
Judge Ho wrote separately and went straight to the judicial-role question:
“Our analysis of the Second Amendment must be guided by history, not a fear of guns. … The job of the judge is not to take sides in political controversies, but to enforce the rights guaranteed to every American by our Constitution. Our founders were not afraid of firearms. To the contrary, they required all able-bodied men between the ages of 18 and 45 to obtain a firearm.”
The Militia Act of 1792 backs that up. Both opinions are exactly the kind of writing the Court should be reading. Eventually.
Why I Do Not Want This Case at the Supreme Court Now
Here is where I have been arguing, against some friends in the movement: we do not have five votes on this Supreme Court to declare machine guns protected arms. Garland v. Cargill, 602 U.S. 406 (2024), the bump-stock case, gave a window into how several Justices think about full-auto fire, and the signals were not encouraging on the merits.
If any circuit ruled tomorrow that civilians have a Second Amendment right to post-1986 machine guns, the federal government would race to the Court for cert. The Court would grant. And we would lose — badly, broadly, and for decades.
The transgender movement just lived this script. They pushed United States v. Skrmetti, 605 U.S. 495 (2025), to the Court before the votes were there, and got a precedent that will haunt their cause for a generation. The gay-rights movement, by contrast, did not jump from Stonewall to Obergefell in a single leap. They sequenced — sodomy laws, then employment, then civil unions, then marriage. We have to do the same.
Sequencing — Where the Movement Should Be Pushing
Federal criminal cases lose at the Supreme Court. United States v. Rahimi, 602 U.S. 680 (2024), went down 8-1. State outlier cases win — Heller knocked out D.C., McDonald knocked out Chicago, Bruen knocked out New York, Caetano v. Massachusetts, 577 U.S. 411 (2016), knocked out Massachusetts on stun guns, and Wolford v. Lopez will, I believe, knock out Hawaii’s sensitive-places regime.
The cases I want at the Court next, in order, are: an “assault weapon” ban case targeting AR-15s, the Gator’s Custom Guns magazine cert petition pending now, suppressor cases, and Duncan v. Bonta on California magazines. Those are winnable. A federal machine gun case is not — yet. And as Willett and Elrod noted, § 922(o) sweeps in non-bearable weapons mounted on tanks and helicopters too. Wilson is a bad vehicle on top of a bad timing problem.
Where I Land
The 10-7 denial in Wilson is a tactical win disguised as a defeat. Hollis survives, which I do not love. But the alternative — a circuit ruling, a cert grant, a 7-2 loss — would be catastrophic. Bad precedent at the high court lasts decades. Patience is a strategy.
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.