Jamaion Wilson was convicted in the Northern District of Texas for possessing a machinegun in violation of 18 U.S.C. § 922(o). On appeal, a three-judge panel affirmed the conviction, relying on two prior Fifth Circuit decisions: United States v. Knutson, which held that Congress can ban machinegun possession under the Commerce Clause, and Hollis v. Lynch, which held that machineguns are 'dangerous and unusual' weapons outside Second Amendment protection. Wilson petitioned for rehearing en banc, arguing that these precedents are unconstitutional. The full court polled its members, and a majority voted against rehearing, leaving the panel's decision in place.
The per curiam opinion denied the petition because a majority of the active judges did not vote in favor of rehearing. However, the accompanying opinions reveal a deep split on the merits. Judge Don Willett, writing for himself and joined by Chief Judge Elrod and Judge Duncan, argued that while the panel was bound by Knutson and Hollis, those precedents are 'dubious.' He contended that mere possession of a firearm does not fit neatly within the Supreme Court's categories of Commerce Clause regulation and that the existence of millions of registered machineguns makes them difficult to classify as 'unusual' under the Second Amendment. Despite these concerns, Willett concluded that the court could not address the constitutional questions in this specific case because Wilson failed to raise a Commerce Clause challenge in the lower courts and his Second Amendment claim was a facial challenge rather than a genuine as-applied challenge. Judge James Ho, joined by Judge Oldham, dissented from the denial, arguing that the court has the authority and duty to revisit errant precedent like Hollis. He emphasized that the issue was 'cleanly presented' and that the court should not delay correcting what he viewed as a historical misapplication of the Second Amendment. Judge Oldham, also joined by Ho, added that there is no historical justification for banning repeating arms, noting that such weapons have existed since the 15th century and were not banned at the Founding.
Wilson's conviction for machinegun possession stands, and the Fifth Circuit's binding precedent in Knutson and Hollis remains the law of the circuit for now. The decision leaves open the possibility that a future case with properly raised constitutional challenges could prompt the en banc court to revisit the constitutionality of 18 U.S.C. § 922(o). Until then, the ban on machinegun possession in the Fifth Circuit remains enforceable under the current interpretation of the Commerce Clause and the Second Amendment.
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