Jonathan Timothy Noyes v. the State of Texas for the Protection of Samantha Jo Voges

Supreme Court of Texas
══════════
No. 24-0023
══════════

Jonathan Timothy Noyes,
Petitioner,

v.

The State of Texas for the Protection of Samantha Jo Voges,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════

JUSTICE HAWKINS, joined by Justice Young and Justice Sullivan,
concurring.

The trial court imposed on Petitioner Jonathan Noyes a lifetime
protective order that permanently prohibits him from possessing
firearms. It did so after finding reasonable grounds to believe that Noyes
had engaged in criminal stalking against a former romantic partner, but
without finding that Noyes poses a credible threat to her (or anyone
else’s) physical safety. Does that order offend Noyes’s fundamental
individual right to keep and bear arms as protected by both the U.S. and
Texas Constitutions?
In late 2023, the court of appeals held “no.” But a few months
later, in mid-2024, the U.S. Supreme Court issued a new decision
charting the constitutional boundaries of firearm restrictions imposed
through protective orders. United States v. Rahimi, 602 U.S. 680 (2024).
The U.S. Supreme Court concluded: “An individual found by a court to
pose a credible threat to the physical safety of another may be
temporarily disarmed consistent with the Second Amendment.” Id. at
702.
Noyes now argues that when Rahimi permitted a temporary
disarmament on the basis of a threat-to-safety finding, it implicitly
prohibited the trial court’s order here—a permanent disarmament with
no such finding. Today, the Court grants his petition, vacates the court
of appeals’ judgment, and remands this case for the court of appeals to
assess that argument in the first instance. Mindful that “the law is
typically better served when the lower courts review a legal issue before
this Court does,” Rattray v. City of Brownsville, 662 S.W.3d 860, 869-70
(Tex. 2023), I concur.
I write separately to highlight why this case is well suited to the
GVR mechanism—that is, a brief opinion of the Court that grants the
petition for review, vacates the lower court judgment, and remands the
case to a lower court in light of some intervening circumstance. When
used correctly, GVRs can advance the law and conserve party and
judicial resources. Although our Court has rarely issued GVRs, I would
encourage litigants to request them when appropriate—especially in
light of our recent modifications to Texas Rule of Appellate Procedure
53.

2
I

After his romantic partner ended their tumultuous dating
relationship, Noyes sent her over 1,500 text messages and emails. (For
all the troubling details, see JUSTICE SULLIVAN’s concurrence, which I
join, ante at 4-6.) She filed multiple police reports. Following an
investigation, the State obtained an arrest warrant, filed criminal
charges, and sought a protective order ex parte under Article 7B,
Subchapter A of our Code of Criminal Procedure.
The trial court convened a bench hearing, at which it found
reasonable grounds to believe that Noyes had engaged in criminal
stalking. The trial court did not find that Noyes posed a credible threat
to the physical safety of his former romantic partner or anyone else. Nor
did it find that Noyes’s conduct involved family violence, threats of
bodily harm, or any use or threatened use of a weapon. The State’s own
prosecutor told the trial court: “There is not a future threat element on
this.”
Nevertheless, the trial court issued a permanent protective order
prohibiting Noyes from possessing any firearm for the remainder of his
life. The court of appeals affirmed, holding that Subchapter A requires
only a finding that “there are reasonable grounds to believe that the
applicant is the victim” of a qualifying offense and that “[n]o additional
showings beyond status as a crime victim are required to obtain the
order.” ___ S.W.3d ___, 2023 WL 8102025, at *7 (Tex. App.—Austin Nov.
22, 2023) (citations omitted).
Six months later, the U.S. Supreme Court decided Rahimi. That
case, like this one, involved a protective order arising from a romantic

3
relationship. Zackey Rahimi dragged his girlfriend, C.M., into his car
and fired a gun after he noticed a bystander witnessed the assault.
Rahimi, 602 U.S. at 686. He later threatened to shoot C.M. if she
reported him. Id. The trial court entered a protective order disarming
Rahimi that was specifically tied to its finding that he posed a credible
threat to C.M.’s physical safety. Id. at 687. In the two months that
followed, Rahimi was involved in five additional shootings. Id. He was
indicted under 18 U.S.C. § 922(g)(8), the federal statute prohibiting
firearm possession by someone subject to a qualifying domestic-violence
restraining order. Id. at 688.
The U.S. Supreme Court held that the protective order against
Rahimi did not violate the Second Amendment. Id. Its reasoning
highlighted two key considerations. First, Rahimi’s underlying
protective order contained a judicial finding that he “represented a
credible threat to the physical safety of” an intimate partner. Id. at 689
(citation and internal quotations omitted). The Court connected this to
a long Anglo-American tradition of surety laws and “going armed” laws,
under which individuals who were found to pose a specific danger to
others could be temporarily stripped of their ability to carry weapons.
Id. at 698-700. The Court explained that the historical analogues all
shared a common feature: they applied to individuals who had been
specifically found to be dangerous to identifiable others. Id. at 698. The
individualized dangerousness finding, in other words, was a critical
consideration in finding the order consistent with the Second
Amendment.

4
Second, the disarmament was temporary. The protective order in
Rahimi’s own case was limited to one to two years after his release from
prison. See TEX. FAM. CODE § 85.025(c). The Court emphasized that the
historical surety and recognizance laws similarly imposed time-limited
restrictions that expired when the danger had passed. Rahimi, 602 U.S.
at 699. The temporary nature of the restriction was an essential piece of
the relevant history and tradition. See N.Y. State Rifle & Pistol Ass’n,
Inc. v. Bruen, 597 U.S. 1, 24 (2022).
Invoking Rahimi, Noyes now seeks our review.

II

Texas Rule of Appellate Procedure 60.2(f) authorizes the GVR
mechanism: we may “vacate the lower court’s judgment and remand the
case for further proceedings in light of changes in the law.” That rule
effectuates sound prudential considerations. A GVR
conserves the scarce resources of this Court that might
otherwise be expended on plenary consideration, assists
the court below by flagging a particular issue that it does
not appear to have fully considered, assists this Court by
procuring the benefit of the lower court’s insight before we
rule on the merits, and alleviates the “[p]otential for
unequal treatment” that is inherent in our inability to
grant plenary review of all pending cases raising similar
issues[.]
Lawrence ex rel. Lawrence v. Chater, 516 U.S. 163, 167 (1996) (first
alteration in original) (citation omitted).
In my view, this is a textbook case for a GVR. First, as the above
discussion shows, Rahimi constitutes a significant intervening change
in the governing constitutional framework. Before Rahimi, no decision

5
of the U.S. Supreme Court had squarely addressed whether, and under
what conditions, a protective-order-based firearm prohibition satisfies
the Second Amendment under the history-and-tradition test of Bruen.
Rahimi now provides that framework—and its emphasis on
individualized dangerousness findings and temporal limitations casts
substantial doubt on the validity of the order below.
The court of appeals had no meaningful opportunity to apply
Rahimi. Its opinion on rehearing was issued before Rahimi was decided.
Its analysis of Petitioner’s Second Amendment claims was confined to a
footnote disposing of those claims on preservation grounds. (As the
Court’s per curiam GVR notes, ante at 2, Noyes sufficiently preserved
his Second Amendment and Arms Clause challenges.) The court never
reached the merits of whether a lifetime disarmament order, entered
without a finding of dangerousness to another person, comports with the
Second Amendment as construed in Rahimi. A remand would allow the
intermediate court to address that question in the first instance.
Finally, there is a reasonable probability that the decision below
rests upon a premise the lower court would reject if given the
opportunity to reconsider. See Lawrence, 516 U.S. at 167. The court of
appeals held that Subchapter A requires “[n]o additional showings
beyond status as a crime victim” to support a lifetime firearms
prohibition. ___ S.W.3d ___, 2023 WL 8102025, at *7 (citation omitted).
But Rahimi indicates that the Second Amendment requires more,
including a finding that the individual poses a credible threat to the
physical safety of another, and a limitation on the order’s duration
commensurate with that threat.

6
This case may return to us one day. If it does, we will benefit from
the lower court’s careful analysis of the above considerations. See
Rattray, 662 S.W.3d at 869-70.

III

Despite their obvious virtues—and our federal counterpart’s
robust GVR practice ranging anywhere from a few dozen to a few
hundred in a given term1—our Court has issued surprisingly few GVRs.2
I believe our State’s judicial system would benefit from more petition-
stage per curiam decisions or other orders that direct lower courts to
reconsider their judgments in light of intervening developments. See
Lawrence, 516 U.S. at 167. Such orders promote efficiency, as they allow
the court of appeals, which is already intimately familiar with the case,
to reevaluate its judgment in light of new authority. Id. They save
parties money, as the briefing on remand in the court of appeals often

1 Compare 125 S. Ct. 984-1115 (2005) (order GVRing nearly 400 cases

in one day “in light of United States v. Booker”) with 143 S. Ct. 70-2686 (2022-
2023) (orders GVRing approximately 50 cases throughout entire 2022 term).
2 I count just over a dozen true GVRs in our Court’s annals, most of

which occurred long ago, see, e.g., In re N.K., 89 S.W.3d 29, 30 (Tex. 2002), but
at least some of which occurred more recently, see, e.g., Karli v. Wilson, No.
25-1085, ___ S.W.3d ___, slip op. at 2 (Tex. May 8, 2026). In addition, we have
occasionally issued orders that resemble certain aspects of GVRs, directing
lower courts to render judgment not “in light of changes of the law,” but
pursuant to a settlement agreement effectuated by the parties. E.g., Orders of
the Supreme Court of Texas, Nos. 24-0206, 24-0954, 24-0987, 25-0063 (Tex.
May 16, 2025). And, of course, we have issued per curiam decisions that have
functioned as GVRs after imposing on parties the substantial cost of full merits
briefing. See, e.g., Thomson v. Hoffman, 674 S.W.3d 927 (Tex. 2023). Plenty of
other per curiam decisions were not but could have been GVRs issued before
full merits briefing.

7
can be limited to the new development, and the resulting decision may
not require extensive further review. And they ensure that when our
Court grants review, all the relevant arguments have already been
vetted and passed on by the lower court in the first instance. I hope that
litigants will alert us when a GVR is warranted.
So when exactly is a GVR warranted? Rule 60.2(f) identifies, but
does not define, “changes in the law.” Undoubtedly, as here, an
intervening judicial decision clarifying the analytical framework for a
constitutional challenge justifies a GVR. But our rule is not limited to
these circumstances. As a matter of federal practice, the U.S. Supreme
Court has “GVR’d in light of a wide range of developments, including . . .
new federal statutes, administrative reinterpretations of federal
statutes, new state statutes, changed factual circumstances, and
confessions of error or other positions newly taken by the Solicitor
General, and state attorneys general.” Lawrence, 516 U.S. at 166-67
(citations omitted). Most of those situations present clear “changes in
the law,” and many petitions for review presenting one or more of these
circumstances will be appropriate candidates for a GVR. (Others may
not. It is not obvious to me, for example, whether a confession of error
by the State is a “change in the law.”)3

3 It is appropriate to consider the U.S. Supreme Court’s practice in
analyzing our Rule 60.2(f). Indeed, this Court adopted our GVR rule to “codify
current practice” just one year after the U.S. Supreme Court confirmed the
benefit of the GVR mechanism and its own capacity to issue such orders in
Lawrence. See Ord. Approving Revisions to the Texas Rules of Appellate
Procedure, Misc. Docket No. 97-9056 (Tex. Mar. 20, 1997); 1997 Comment to
TEX. R. APP. P. 60.

8
Of course, the existence of some intervening development will not
always merit a GVR, and our colleagues on the U.S. Supreme Court have
pointed out that the GVR mechanism can be misused and abused. See
Lawrence, 516 U.S. at 191-92 (Scalia, J., dissenting) (arguing that a
GVR is inappropriate unless “an intervening factor has arisen that has
a legal bearing upon the decision”). Reasonable minds may differ about
whether any particular intervening development is significant enough
to justify a do-over in the court of appeals. See Grzegorczyk v. United
States, 142 S. Ct. 2580, 2581 (2022) (mem.) (Sotomayor, J., dissenting
from the denial of GVR); see generally Aaron-Andrew P. Bruhl, The
Supreme Court’s Controversial GVRs—and an Alternative, 107 MICH. L.
REV. 711 (2009). At a minimum, we should require “a reasonable
probability that the decision below rests upon a premise that the lower
court would reject if given the opportunity for further consideration, and
where it appears that such a redetermination may determine the
ultimate outcome of the litigation.” Lawrence, 516 U.S. at 167; cf. Gilbert
Tex. Constr., L.P. v. Underwriters at Lloyd’s Lond., 327 S.W.3d 118, 136
(Tex. 2010) (“We see no need to remand the case to allow the court of
appeals to consider an argument it has effectively already considered.”);
In re Doe 4, 19 S.W.3d 322, 331 (Tex. 2000) (Hecht, J., dissenting) (“It is
one thing for the Court to remand a case for further consideration in
light of developments in the law that may not have been anticipated, but
it is another thing altogether to remand when a party has made no
attempt to adduce even minimal proof.”). The fact that there will be
some gray areas and close calls should not dissuade parties from

9
invoking in good faith the possibility of a GVR when there are
reasonable grounds to do so.
I close with a suggestion to the bar. Litigants have always been
free to raise Rule 60.2(f) and request a GVR in light of changes in the
law. But under our new approach to petitions for review, where we grant
review before receiving merits briefing, it is critical that litigants alert
us at the petition stage—as soon as possible—that a GVR is warranted.
See generally TEX. R. APP. P. 53 & cmts. When the petitioner or
respondent is aware of an intervening development that creates a
reasonable probability that the decision below would come out
differently on reconsideration, he should bring it to our attention
immediately. Not every such development will merit a GVR. But when
one does, we should dispose of it swiftly on the petition, before saddling
our judicial system with the costs, burdens, and year-long delay of full
merits briefing and plenary review. See generally Megatel C90-2, Inc. v.
Bank of Utah, 712 S.W.3d 625, 625 n.2 (Tex. 2025) (Sullivan, J.,
concurring) (illustrating such costs and burdens).
***
For these reasons, I concur in the GVR.

Kyle D. Hawkins
Justice

OPINION FILED: May 15, 2026

10

Supreme Court of Texas
══════════
No. 24-0023
══════════

Jonathan Timothy Noyes,
Petitioner,

v.

The State of Texas ex rel. Samantha Jo Voges,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════

JUSTICE SULLIVAN, joined by Justice Devine, Justice Young, and
Justice Hawkins, concurring.

The great American Antonin Scalia once warned that a bill of
rights without a structure for protecting it is just a “parchment
guarantee[ ].” Antonin Scalia, Foreword: The Importance of Structure in
Constitutional Interpretation, 83 Notre Dame L. Rev. 1417, 1418 (2008).
As Justice Scalia explained, “[e]very tinhorn dictator in the world, every
banana republic, every president for life operates under a bill of rights.”
Antonin Scalia, Congressional Power (Jan. 24, 2011), in Scalia Speaks:
Reflections on Law, Faith, and Life Well Lived 213, 217 (Christopher J.
Scalia & Edward Whelan eds., 2017). Even “the bill of rights of the
former Evil Empire, the Union of Soviet Socialist Republics, contained
guarantees much more expansive than ours.” Id. None of that stuff
mattered, though, because the victims of Communism had no means
of enforcing rights on a printed page. Our Founders knew that
constitutions are fragile. So they safeguarded liberty with paper and
steel. Pens may be mightier than swords, but the two together are
mightier still.
Little wonder, then, that the historical record around our nation’s
founding is chock-full of quotes like these:
• “The right of self-defense is the first law of nature . . . .” 1 St.
George Tucker, Blackstone’s Commentaries: With Notes of
Reference, to the Constitution and Laws, of the Federal
Government of the United States; and of the Commonwealth
of Virginia 300 (Philadelphia, William Young Birch &
Abraham Small 1803).

• No despot can efface the “fundamental, sacred, and
unalterable law of self-preservation.” John Locke, Second
Treatise of Civil Government § 149 (1690).

• Laws “that forbid carrying arms . . . disarm only those who
are not inclined or determined to commit a crime,” thereby
“worsen[ing] the condition of the assailed, [and] bettering
that of the assailants.” Thomas Jefferson, Jefferson’s Legal
Commonplace Book 521 (David Thomas Konig et al. eds.,
2019) (quoting Cesare Beccaria, On Crimes and Punishments
§ 40 (1764)).

• “The right of self defense never ceases. It is among the most
sacred, and alike necessary to nations and to individuals . . . .”
James Monroe, Second Annual Message (Nov. 16, 1818).

Our forefathers learned the importance of a right to armed self-
defense the hard way, from dealing with despots like George III and
Santa Anna, along with pettier criminals. The right to keep and bear

2
arms, forged in the fires of rebellion and quenched in the waters of victory,
is no “second-class right.” McDonald v. City of Chicago, 561 U.S. 742, 780
(2010) (plurality opinion of Alito, J.). It’s been handed down generation to
generation, from the Saxons to the Sons of Liberty, from the martyrs of the
Alamo to the Texas Rangers, all the way to you and to me.
For many decades, however, high courts like ours had nothing to
say about what this right means for us today. Our federal counterpart
finally piped up in 2008 when it reaffirmed that the Second Amendment
still matters in District of Columbia v. Heller, 554 U.S. 570 (2008)
(Scalia, J.). Yet it’s been around a century since this Court has had
anything to say about the Second Amendment or about the Arms Clause
found in Article I, Section 23 of the Texas Constitution. 1
Rights, like rifles, must be handled with care. As the U.S. Supreme
Court recently held, the Second Amendment doesn’t protect everyone
with a pistol and a pulse. See United States v. Rahimi, 602 U.S. 680
(2024). Without violating the U.S. Constitution, the government can
temporarily disarm a person for being subject to a protective order if he’s

1 To be fair, the Second Amendment and our Arms Clause have made a

few cameos in recent opinions out of this Court. E.g., Harris County v. Annab,
547 S.W.3d 609, 615 (Tex. 2018); Ferguson v. Tex. Dep’t Pub. Safety, 629 S.W.3d
903, 905–09 (Tex. 2021) (Blacklock, J., dissenting from denial of petition for
review). And the Court of Criminal Appeals has (mis)construed them on
occasion. See, e.g., Masters v. State, 685 S.W.2d 654, 655 (Tex. Crim. App.
1985) (per curiam) (“The Second Amendment simply does not [sic] apply to the
states or their subdivisions.”); Collins v. State, 501 S.W.2d 876, 877–78 (Tex.
Crim. App. 1973) (citing “interpretative commentary” as a basis for declining
“to nullify the purpose for which the Legislature was given the regulatory
power; namely, ‘to prevent crime’”). The People of Texas deserve better than
a handful of drive-by citations by the Supreme Court and curt opinions from a
lower court.

3
been found to pose a “credible threat” to another’s physical safety. Id. at
702. In the wake of Rahimi, disarmed bad guys across the country have
tried to argue that their cases are somehow different. Petitioner
Jonathan Noyes is one of them. He contends that Subchapter A of
Chapter 7B of the Texas Code of Criminal Procedure, the protective-
order statute that was applied for the purpose of disarming him, violates
both the Second Amendment and the Texas Constitution’s Arms Clause.
The time is nigh to break our own deafening silence about these
constitutional guarantees. It might even happen in this very case, after
the court of appeals does its job on the remand we’ve now ordered—a
decision with which I concur. See Rattray v. City of Brownsville, 662
S.W.3d 860, 869–70 (Tex. 2023) (“[A]s a prudential matter, the law is
typically better served when the lower courts review a legal issue before
this Court does. Ours is a court of final review and not first view.”
(quoting Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012) (internal
quotation marks omitted))). I offer these thoughts not to settle the
matter, but to stir the pot. My preliminary review leads me to think
that Subchapter A raises grave constitutional concerns under both the
Second Amendment and our Arms Clause, at least as applied to Noyes
in this case.

I
Noyes started dating Samantha Voges in January 2019, and
they began cohabitating shortly thereafter. Domestic bliss did not
ensue. Voges described Noyes as “tormenting, mean, [and] harassing.”
Noyes physically assaulted Voges multiple times, and she later
reported the abuse to the police. Noyes also made Voges sleep in a

4
spare room, until the night when he saw fit to knife the air mattress
on which she was sleeping.
Two years into their relationship, Noyes came to believe that
Voges was cheating on him. So he told her to come pick up her things
immediately, or else he would throw her dog and her possessions out
onto the street. Voges rushed home and told Noyes that she was
breaking up with him. Noyes responded by locking her dog in a
bedroom. He later released the dog but boxed Voges into a bathroom
and told her she couldn’t leave until they talked. Once Voges convinced
Noyes to relent, she fled the house with her dog and her belongings.
Within weeks, Noyes started sending Voges threatening and
harassing texts, from many different phone numbers, on an almost-daily
basis. Voges reported the harassment to the sheriff, but no professionals
stepped in to help her. Then, about a month after Voges ended the
relationship, Noyes cursed her out via text message for blocking his
number and wrote that he was on his way to her workplace.
Over the next few weeks, Noyes unleashed a digital barrage: about
1,500 text messages from dozens of numbers, plus hundreds of emails
from various addresses. Those messages were full of vulgarity and
threats. He continued to accuse Voges of infidelity and threatened to ruin
her life repeatedly, including by disclosing personal information. At one
point he tried to coerce her into inappropriate sexual relations. He also
used spoofed numbers to make it look like Voges’s mother was calling. In
total, Voges blocked at least 60 different phone numbers that Noyes used
to contact her. She also deleted multiple social-media accounts because
he harassed her on those platforms.

5
On one occasion, Noyes told Voges that he would go to her parents’
house if she blocked his latest new number. He also sent threatening
and harassing texts to her family. Noyes often texted Voges to indicate
that he knew where she was; Voges later found a GPS tracking device
attached to her car. And he tried to access her bank account, phone
account, email account, and other personal accounts.
Noyes’s behavior escalated, and so did Voges’s fears. She even got
a new cellular phone and phone number. But within five days, Noyes
somehow learned her new number and resumed texting her. Voges
didn’t know how he did so because she’d entrusted the new number only
to family and coworkers. The next day, the District Attorney sought,
and the district court granted, an ex parte protective order against Noyes
on Voges’s behalf. The court also issued a warrant for Noyes’s arrest.
He posted a bond.
The ex parte order barred Noyes from contacting Voges. So Noyes
tried to take Voges’s deposition testimony as part of the protective-order
proceedings. The district court denied that request and held a full
hearing to consider a permanent protective order. At the end of that
hearing, the district court found reasonable grounds to believe that
Noyes had stalked Voges and entered a permanent protective order.
That order—which is still in effect—forbids Noyes from contacting,
harassing, or threatening Voges, or from going near her home or place
of work. Importantly, it also prohibits Noyes from owning a gun for the
rest of Voges’s life.
Noyes moved for a new trial. He made a variety of arguments,
including that his threats are constitutionally protected speech, that he

6
was denied due process, and that he’s entitled to keep his firearms under
the Second Amendment and our Constitution’s Arms Clause. The
district court denied his motion.
Noyes appealed, and the court of appeals affirmed the protective
order. That court confirmed that Noyes’s persistent threats against
Voges constituted sufficient evidence of stalking. As for his constitutional
arguments, the court held that his threats aren’t protected speech. It
didn’t consider the due-process claim because Noyes didn’t brief it.
Crucially, for present purposes, the court of appeals held that
Noyes didn’t preserve his challenges to Subchapter A under the Second
Amendment and our Arms Clause. It did so in a footnote that puts
Reggie Roby to shame:
In this issue, Noyes also asserts that the lifetime ban on
his possession of firearms violates his constitutional right
to bear arms, see U.S. Const. amend. II; Tex. Const. art. I,
§ 23, for the reasons explained in New York State Rifle &
Pistol Ass’n, Inc. v. Bruen, [597 U.S. 1, 24–25] (2022)
(concluding that to uphold firearm regulation, government
“must affirmatively prove” that challenged regulation “is
consistent with the Nation’s historical tradition of firearm
regulation”), and United States v. Rahimi, 61 F.4th 443,
448 (5th Cir. 2023) (concluding that statute that prohibited
possession of firearms by person subject to domestic-
violence restraining order failed Bruen test and thus
violated Second Amendment), cert. granted, 143 S. Ct. 2688
(2023). Noyes did not raise this challenge to the
constitutionality of the statute in the court below, and he
cannot raise it for the first time on appeal. . . . Noyes did
argue in the court below that his Second Amendment
rights were violated because there was no evidence of gun
threats or gun violence presented at trial. However, as we
have already explained, the only finding required to issue
a protective order under the statute is that “there are

7
reasonable grounds to believe that the applicant is the
victim” of an offense such as stalking. Tex. Code Crim.
Proc. art. 7B.003(a). The statute does not require evidence
of gun threats or gun violence to restrict a person’s Second
Amendment rights.

Noyes v. State ex rel. Voges, No. 03-22-00071-CV, 2023 WL 8102025, at
*9 n.4 (Tex. App.—Austin Nov. 22, 2023).
Noyes sought review here in January 2024, about a year before I
was honored with a gubernatorial appointment to this Court. We abated
his case pending the U.S. Supreme Court’s opinion in Rahimi, which
was handed down five months later. We called for merits briefing in
March 2025. Now, with the benefit of petition-stage briefing, merits
briefing, and two years to study all the papers, we’ve learned that Noyes
did, in fact, assert his constitutional claims in the district court. 2
Today’s GVR sends the case back for consideration of the Second
Amendment claim and the Arms Clause claim that the court of appeals
tried to punt. See post at 5–10 (Hawkins, J., concurring) (unpacking the
“GVR” mechanism); cf. Josh Blackman, The Irrepressible Myth of Cooper
v. Aaron, 107 Geo. L.J. 1135, 1194 (2019) (explaining how the U.S.
Supreme Court “will grant, vacate, and remand (GVR) in a separate

2 His new-trial motion, for example, argued that “the imposition by the

Court of a lifetime ban upon possession of a firearm by [Noyes] is a violation of
his 2nd Amendment rights under the US Constitution as well as Art. I, Section
23 of the Texas Constitution.” The briefing below might’ve been better had
Noyes (or any of the courts) bothered to serve the requisite notice of his
Subchapter A challenge on the Attorney General. See Tex. Const. art. V, § 32;
Tex. Gov’t Code § 402.010(a). The Office of the Solicitor General may wish to
weigh in on the constitutional claims Noyes has urged under the Second
Amendment and our Arms Clause.

8
order—that is, grant the petition, vacate the lower court decision, and
remand for reconsideration”). At long last, therefore, the so-called real
talk about the right to armed self-defense will begin in earnest.

II
Were we to take this case now, we’d first have to decide whether
Subchapter A authorized the district court’s disarmament order. If not,
we probably wouldn’t need to reach the hard constitutional questions.
See, e.g., Paxton v. Annunciation House, Inc., 719 S.W.3d 555, 577 (Tex.
2025). Noyes argues that, according to Section 85.025 of the Texas
Family Code, the district court needed to make special findings to issue
a protective order lasting more than two years. But I agree with the
district court on this point: Subchapter A of Chapter 7B of the Texas
Code of Criminal Procedure purports to authorize longer orders—even
lifetime disarmament—without those extra findings.
Subchapter A isn’t the only provision that authorizes protective
orders for victims like Voges. The Family Code does too. But Section
85.025 of that code stops a court from issuing family-violence protective
orders lasting more than two years, absent certain findings. See Tex.
Fam. Code § 85.025(a)–(a-1). Noyes argues that this extra-findings
requirement applies with equal force to Subchapter A orders, while the
State counters that it applies only to Family Code protective orders.
The State is right. By its own terms, Section 85.025 applies only
to “an order under this subtitle.” Id. § 85.025(a) (emphasis added).
Subchapter A isn’t even in the same code, much less the same subtitle.
Other textual features of Section 85.025 reinforce the conclusion that it
applies only to Family Code protective orders. Each of the protection-

9
extending findings requires some showing of past family violence. See
id. § 85.025(a-1)(1)–(3). Plus, Section 85.025(a) and Article 7B.007(a) of
Subchapter A each contain the exact same timing rule that protective
orders last for two years unless the order says otherwise. Id. § 85.025(a);
Tex. Code Crim. Proc. art. 7B.007(a). If Noyes were right that Section
85.025(a)’s two-year limit governs Subchapter A orders, then Article
7B.007(a) would be superfluous. Most importantly, Article 7B.007(a) is
explicit that Subchapter A orders may “be effective for the duration of
the lives of the offender and victim or for any shorter period stated in
the order.” Tex. Code Crim. Proc. art. 7B.007(a). So while it’s true that
Family Code rules apply to Subchapter A orders “except as otherwise
provided,” id. art. 7B.008, the excusable two-year limit in Section
85.025(a) has been overridden by the Legislature, see id. art. 7B.007.

III
That brings us to the bigger question: Does Subchapter A pass
constitutional muster? Noyes says it doesn’t, at least as applied to him.
He argues that his permanent disarmament violates both the Second
Amendment and the Texas Constitution’s Arms Clause. Though I’m
open to contrary arguments rooted in the original public meaning of both
constitutional provisions if and when the case returns to this Court, my
preliminary view is that, as applied to Noyes, Subchapter A likely
violates both provisions.

A
Turning first to his Second Amendment claim, Noyes raises grave
concerns with Subchapter A. He argues that Subchapter A goes too far

10
in authorizing disarmament for as long as both he and Voges are alive,
even if he has long since ceased to be a threat to anyone. The State retorts
that Subchapter A withstands Noyes’s Second Amendment challenge
under Rahimi. 3
In Rahimi, the U.S. Supreme Court held that the Second
Amendment doesn’t help a person who’s been temporarily disarmed
under a protective order if he poses a “credible threat” to the applicant’s
physical safety. See 602 U.S. at 690. To reach that conclusion, the Court
applied the text-history-and-tradition framework it previously adopted
in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 19 (2022).
That opinion had rejected means-end scrutiny for Second Amendment
purposes, even though the Court sometimes uses that framework for
other constitutional rights. Id. Instead, the Court explained, “the
government must affirmatively prove that its firearms regulation is part
of the historical tradition that delimits the outer bounds of the right to
keep and bear arms.” Id. Bruen surveyed centuries of Anglo-American
legal history and found no tradition supporting broad restrictions on
public carry by law-abiding citizens. Id. at 38–70.
In Rahimi, the Court used the same methodology but came to the
opposite conclusion about a facial challenge to a different law, codified
at 18 U.S.C. § 922(g). In Section 922(g), Congress prohibited anyone
subject to certain domestic-violence restraining orders from possessing

3 The State mistakenly argues that Noyes forfeited his constitutional

challenges by failing to preserve them in the district court. Under our generous
forfeiture rules, Noyes cleared the low bar for preserving his challenges by
asserting in his new-trial motion that the lifetime ban on firearm possession
violated his rights under the Second Amendment and our Arms Clause.

11
a firearm. See Rahimi, 602 U.S. at 685 (citing 18 U.S.C. § 922(g)(8)).
The Court found that, at the time of the Founding both in England and
in America, governments had the power to disarm dangerous people.
“Taken together, the surety and going armed laws confirm what
common sense suggests: When an individual poses a clear threat of
physical violence to another, the threatening individual may be
disarmed.” Id. at 698; see also id. at 693–98. “Section 922(g)(8) is by no
means identical to these founding era regimes, but it does not need to
be.” Id. at 698. It’s enough that Section 922(g) is “relevantly similar” to
historical analogues: The prohibition applies only to “individuals found
to threaten the physical safety of another” and is “of limited duration”—
one to two years in Zackey Rahimi’s case. Id. at 698–99.
That brings us back to Noyes and Subchapter A. His case differs
from Rahimi in two important ways. First, the specific provision of
Section 922(g)(8) at issue in Rahimi requires a finding of dangerousness,
while Subchapter A does not. Id.; see also id. at 693 (“Our analysis
starts and stops with Section 922(g)(8)(C)(i) because the Government
offers ample evidence that the Second Amendment permits the
disarmament of individuals who pose a credible threat to the physical
safety of others. We need not decide whether regulation under Section
922(g)(8)(C)(ii) is also permissible.”). Second, Rahimi dealt with a
temporary disarmament of one to two years, while Subchapter A
authorizes lifetime disarmament. So while Rahimi offers guidance, it
doesn’t squarely answer the Second Amendment question presented
here. To find that answer, we’d need to dig into the historical record and
ask whether there’s a tradition of laws that, like Subchapter A, allow

12
courts to disarm someone for life without a finding of dangerousness.
Spoiler alert: I’ve found none so far.

1
Let’s start with English history. In the beginning (for purposes
of the Second Amendment), God created the Angles, the Saxons, and the
Jutes. The society that these groups eventually forged together relied
on a strong militia in lieu of a large standing army. Freemen weren’t
just allowed but were required to keep arms to defend themselves and
others. William S. Fields & David T. Hardy, The Militia and the
Constitution: A Legal History, 136 Mil. L. Rev. 1, 3 (1992). Freemen
“were bound to keep arms for the preservation of the kingdom, their
lords, and their own persons” and could “neither pawn nor sell” their
arms but rather had to “leave them to descend to their heirs.” Nathaniel
Bacon, An Historical and Political Discourse of the Laws and
Government of England, from the First Times to the End of the Reign of
Queen Elizabeth 40 (London, 5th ed. 1760) (cleaned up).
That said, the Saxons did impose certain restrictions on arms
use—most of which limited sword-drawing. For example, under Saxon
rule, drawing a sword while intoxicated was illegal, and so was drawing
a sword in the king’s hall or in the archbishop’s presence. The Laws of
the Earliest English Kings 21, 69, 73 (F.L. Attenborough ed., 1922).
Sword-drawing offenses were generally punishable by fine, see id. at 21,
73, except for the offense of drawing a sword in the king’s hall, which
was punishable by death, id. at 69.
Armament mandates continued after the Norman conquest.
Henry II’s “Assize of Arms” required every freeman to keep weapons

13
based on his wealth. 27 Hen. 2 (1181) (Eng.), reprinted in 2 English
Historical Documents 416–17 (David C. Douglas & George W.
Greenaway eds., 1953). And Henry III later expanded that duty to
include serfs. Fields & Hardy, supra, at 6. Edward I reaffirmed the
requirement through the Statute of Winchester. 13 Edw. c. 6 (1285)
(Eng.), reprinted in 1 The Statutes of the Realm 96–98 (London 1810).
Among the required arms was the English longbow, the premier
weapon of its time. Id. Archers played a key role in English military
doctrine, especially in wooded terrain and guerrilla-style engagements.
Mathew Strickland & Robert Hardy, From Hastings to the Mary Rose:
The Great Warbow 136–40 (2005). This was especially true during “the
wars of Edward III, which led not only to the archer’s rising status but
[also] to the swelling in numbers of those unemployed soldiers who,
during periods of peace, took to the woods with their bows.” Id. at 141.
Many archers also took to the forests during this time to flee corrupt and
oppressive laws (perhaps leading to the legend of one resident of
Sherwood Forest). Id. at 140–43; see, e.g., Robin Hood: Prince of Thieves
(Warner Bros. 1991). This led England’s kings to enact the forest laws,
which banned the carrying of weapons, especially longbows, in forests
without permission of the king. Strickland & Hardy, supra, at 144–45.
“Hunting in all its forms had long been regarded as good training
for war . . . .” Id. at 143. And under Saxon rule, men could “hunt as they
pleased on their own lands provided they respected the king’s own
woodlands.” Id. at 144. But the Norman kings monopolized “hunting
over extensive areas of the country through the harsh, arbitrary and
detested forest law.” Id. “Designed in principle to protect the king’s

14
game by restricting hunting and [deforestation], the forest jurisdiction
in addition quickly came to be a lucrative source of crown revenue, with
itinerant justices of the forest exacting heavy fines not only for poaching
but for taking wood . . . without permission.” Id. The Normans even
expanded the boundaries of royal “forests” to include villages and other
areas that were not, in fact, wooded—so that “as much as one-third of
England may have fallen within the forest law.” Id.
Throughout the entire Plantagenet period, Englishmen continued
to view the keeping and bearing of arms more as a duty to the Crown
than as a personal liberty. For example, when the barons forced King
John to sign Magna Carta at Runnymede—after having just fought a
civil war against him—they didn’t include any mention of an individual
right to arms. Diarmuid F. O’Scannlain, Glorious Revolution to
American Revolution: The English Origin of the Right to Keep and Bear
Arms, 95 Notre Dame L. Rev. 397, 401 (2019).
That allowed England’s kings to keep regulating the public carry
of weapons. Even as Edward I reaffirmed the duty to keep arms for
militia duty, he passed the Statute of Westminster in 1285, which
generally prohibited a person from going armed about the City of
London after curfew. 13 Edw. c. 1 (1285) (Eng.), reprinted in 1 The
Statutes of the Realm, supra, at 102. “By several royal proclamations,
[Edward I] also prohibited anyone from going armed within the realm
without the king’s special license.” Michael P. Bitgood, Note, Still “One
Step Too Many”: How Bruen’s Text-and-History Test Ignores the Plain
Text of the Second Amendment, 1 J.L. Civ. Governance Tex. A&M 329,
340 (2024) (internal quotation marks omitted). From then on,

15
“proclamations against going armed to prevent possible affrays became
quite regular.” Patrick J. Charles, The Faces of the Second Amendment
Outside the Home: History Versus Ahistorical Standards of Review, 60
Clev. St. L. Rev. 1, 11 (2012). 4
But by far the most infamous “going armed” law was the Statute
of Northampton, enacted in 1328. Bruen, 597 U.S. at 40. England at
that time was a lawless place. “Bands of malefactors, knights as well as
those of lesser degree, harried the country, committing assaults and
murders;” and this “spirit of insubordination” had caused a “decay in
English national life.” Kenneth H. Vickers, England in the Later Middle
Ages 107 (Charles Oman ed., 1914). And it didn’t help that England was
corruptly ruled by Queen Isabella, the “She-Wolf of France,” who’d taken
over as regent after she deposed her husband. See Bitgood, supra, at 340. 5

4 According to William Hawkins, going armed had always been an
offense at common law. 1 William Hawkins, A Treatise of the Pleas of the
Crown 135 (London, Eliz. Nutt 1716). And just before the Glorious Revolution,
the King’s Bench echoed that notion, explaining that going armed would imply
that “the King w[as] not able to or willing to protect his subjects.” Sir John
Knight’s Case (1686) 87 Eng. Rep. 75, 76; 3 Mod. 117, 118. But it’s unclear
whether going armed was actually an offense at common law or whether it had
just been banned under statute for so long that, by Hawkins’s time, it was
treated like common law. See Charles, Faces of the Second Amendment, supra,
at 11 (arguing that, “[t]o date, no historian or originalist has provided
evidence” that officers of the king had common-law authority to prosecute
people for going armed before the Statute of Northampton).
5 Isabella’s deposition is a gripping tale of treason, scandal, and murder.

Her husband, Edward II, faced multiple insurrections during his reign. 3 T.F.
Tout, The History of England from the Accession of Henry III to the Death of
Edward III 264–309 (William Hunt & Reginald L. Poole eds., 1905); see, e.g.,
The King v. Hugh Le Despencer (1320) 1 How. St. Tr. 23, 23–38 (Eng.). One of
those insurrections was led by Roger Mortimer, who (after being arrested)

16
Under the Statute of Northampton, men couldn’t go armed but
“upon pain to forfeit their armour to the king, and their bodies to prison
at the king’s pleasure.” 2 Edw. 3 c. 3 (1328) (Eng.), reprinted in 1 The
Statutes of the Realm, supra, at 258 (capitalization omitted). “To enforce
the Statute, Edward III ordered sheriffs to investigate the malefactors
who ha[d] made assemblies of men-at-arms or ha[d] ridden or gone
armed in his bailiwick, contrary to the statute and the king’s
proclamation.” Range v. Attorney General, 124 F.4th 218, 238 (3d Cir.
2024) (Matey, J., concurring) (internal quotation marks omitted).
Three facets of the Statute’s scope are relevant to our
Subchapter A: the locations, the persons, and the arms subject to the
Statute. First, the Statute limited the location of carrying to one’s own
house. After all, its blanket rule that a man could not go armed “by
night or by day, in fairs, markets, the presence of the justices or other
ministers, or any part elsewhere,” pretty unambiguously prohibited the
public carry of arms. See 2 Edw. 3 c. 3 (1328) (Eng.), reprinted in 1 The
Statutes of the Realm, supra, at 258 (cleaned up).
Second, there’s some debate among commentators about whether
the Statute applied to all non-noblemen or only to those men thought to

escaped to France. See 3 Tout, supra, at 293. When England and France later
went to war, see id. at 296, Edward II sent Isabella to France to negotiate a
truce with her brother, the king of France. While there, Isabella got into a
relationship with Mortimer that was “notorious all over England and France.”
Id. at 298. Together, they raised an army, marched on London, and deposed
Edward II. Id. at 298–302. They then proclaimed Isabella as regent for her
14-year-old son Edward III, id. at 301–04, and “began ruling rather corruptly
in the king’s name,” Bitgood, supra, at 340; see also 3 Tout, supra, at 304–09;
In re Impeachment of Roger Mortimer (1330) 1 How. St. Tr. 51, 51–54 (Eng.).

17
be dangerous. Some who take the latter view argue that, because the
statute exempted “the king’s servants in his presence, and his ministers
in executing of the king’s precepts, or of their office, and such as be in
their company assisting them,” Id. (capitalization omitted), the only men
not exempt were those thought to be dangerous, see Charles, Faces of the
Second Amendment, supra, at 26 (“Such persons were exempt because
they were presumed to be in no danger of offending the law, or having
an intention to commit any act of violence, or disturbing of the peace.”
(internal quotation marks omitted)). That, of course, would mean that
every citizen not actively engaged in the service of the king was
presumed to be dangerous, a proposition that would be in some tension
with the laws requiring men to keep arms for militia use.
Third, though it seems to on its face, the Statute probably didn’t
apply to all arms. As Bruen noted, the Statute “appears to have been
centrally concerned with the wearing of armor.” 597 U.S. at 41 (collecting
sources). To the extent that “armor” included weapons, it covered
weapons like lances that were “generally worn or carried only when one
intended to engage in lawful combat or—as most early violations of the
Statute show—to breach the peace.” Id.; see also 4 Blackstone, supra,
at *148 (describing the offense as “going armed with dangerous or
unusual weapons” (cleaned up)). And history shows that people
continued to carry weapons (especially knives and daggers) for self-
defense during this period; that wasn’t considered a violation. Bruen,
597 U.S. at 41.
As far as modern analogues go, that appears to place handguns
outside the Statute’s scope. Id. at 41–42. When guns first came onto

18
the scene, however, they faced their own set of restrictions. In 1514,
Henry VIII prevailed on Parliament for a statute requiring a license for
anyone to own a gun and allowing licenses only for certain noble or
wealthy men. 6 Hen. 8 c. 13 (1514) (Eng.), reprinted in 3 The Statutes
of the Realm, supra, at 132; see also 3 Hen. 8 c. 13 (1511) (Eng.),
reprinted in 3 The Statutes of the Realm, supra, at 32–33 (enacting the
same requirements for crossbows). 6 It may be tempting for modern
readers to assume that Henry VIII was trying to protect his people from
roving bands of harquebusiers. But that isn’t true. These restrictions
were principally motivated by a concern that the people would be
distracted from “practicing with long bows, which were considered
essential to national defense by the militia.” David B. Kopel & Joseph
G.S. Greenlee, The “Sensitive Places” Doctrine: Locational Limits on the
Right to Bear Arms, 13 Charleston L. Rev. 205, 219 (2018). The English
longbow had remained an important part of national identity since the
time of the Normans, and it was credited with English military victories
at Crécy and Agincourt. See Bruen, 597 U.S. at 42 (citing R. Payne-
Gallwey, The Crossbow 32, 34 (1903); L. Schwoerer, Gun Culture in

6 Henry VIII firmly enforced these restrictions. For example, he issued
a proclamation instructing “the sheriffs and mayor of London to stop being
negligent, slack, or remiss in enforcing the arms restrictions.” David B. Kopel,
The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned to
the Aid of Law Enforcement, 104 J. Crim. L. & Criminology 761, 782–83 (2014)
(internal quotation marks omitted). And he later “expressed his displeasure
and indignation about the unenforcement of arms bans.” Id. at 783 (internal
quotation marks omitted).

19
Early Modern England 54 (2016)). 7 Given the immense amount of
training required to be competent in longbow usage, Henry VIII also
passed a statute requiring fathers to provide their sons with longbows
and teach them how to shoot. 6 Hen. 8 c. 2 (1515) (Eng.), reprinted in 3
The Statutes of the Realm, supra, at 123–24. The bottom line is that
Henry VIII suppressed crossbows and firearms in an effort to make his
subjects more dangerous, not less.
Firearm restrictions continued through the rest of the century. 8
For example, Elizabeth I expanded the Statute of Northampton to
prohibit handguns and other concealable weapons. Patrick J. Charles,
The Fugazi Second Amendment: Bruen’s Text, History, and Tradition
Problem and How to Fix It, 71 Clev. St. L. Rev. 623, 632–33 (2023). Her
Privy Council even unsuccessfully “proposed that the government
should hold the militia’s arms instead of allowing the people to keep
them in their homes.” Bitgood, supra, at 344.
In the latter half of the seventeenth century, English monarchs
“ramped up efforts to disarm their political opponents, an experience

7 The longbow was a formidable weapon—in some ways more
formidable than the crossbow and early firearms because it had a greater rate
of fire. But it required significantly more training to use effectively than the
crossbow or arquebus did. See Strickland & Hardy, supra, at 17. The longbow
was so powerful and difficult to draw that longbowmen had to train from an
early age. Id. The strain of repeated use was so extreme that archers would
develop scoliosis. Id.
8 E.g., 2 & 3 Edw. 6 c. 14 (1548) (Eng.), reprinted in 4 The Statutes of

the Realm, supra, at 58 (banning possession of hail shots, which were medieval
forms of handheld shotguns, for all but the wealthy and requiring authorized
owners to register their hail shots with the government); Statute of Winchester
1603, 1 Jac., c. 25 (Eng.), reprinted in 4 Statutes of the Realm, supra, at 1050
(repealing the militia laws that required men to keep arms).

20
that ‘caused Englishmen . . . to be jealous of their arms.’ ” Bruen, 597
U.S. at 42–43 (quoting Heller, 554 U.S. at 593) (alteration in original). 9
To start, Charles II passed the Game Act of 1671, which restricted arms
possession to the nobility. 22 & 23 Car. 2 c. 25, § 2 (Eng.), reprinted in
5 The Statutes of the Realm, supra, at 745. Then he revived the Statute
of Northampton, which had fallen almost entirely into desuetude, and
charged Sir John Knight with violating it because he “did walk about the
streets armed with guns, and . . . went into the church of St. Michael, in
Bristol, in the time of divine service, with a gun, to terrify the King’s
subjects.” Sir John Knight’s Case, 87 Eng. Rep. at 76; 3 Mod. at 117.
Chief Justice Herbert interpreted the Statute as punishing only
“people who go armed to terrify the King’s subjects,” not anyone who

9 These abuses of power undermined the notion that the king could do

no wrong, which was “a necessary and fundamental principle of the English
constitution.” 3 Blackstone, supra, at *254 (cleaned up). Under that theory,
whenever “it happened that, by misinformation or inadvertence, the crown was
induced to invade the private rights of any of its subjects,” that invasion was
“not chargeable personally to the king” but rather to his officers. Id. at *254–
55 (cleaned up). To remedy an officer’s invasion of a right, the law “furnished
the subject with a decent and respectful mode of removing that invasion,”
namely, “informing the king of the true state of the matter in dispute.” Id. at
*255. But as George III’s refusal to even receive the Continental Congress’s
petition for relief from the Intolerable Acts might suggest, that remedy tended
to work better in theory than in practice. See 2 John Adolphus, The History of
England from the Accession of George III to the Conclusion of Peace in One
Thousand Seven Hundred and Eighty-Three 217–18 (London 1802); 1 Journals
of the Continental Congress 1774–1789, at 115–22 (1904) (“We your majesty[’]s
faithful subjects . . . beg leave to lay our grievances before the throne. . . . Your
royal indignation, we hope, will rather fall on those designing and dangerous
men, who [are] daringly interposing themselves between your royal person
and your faithful subjects, . . . by abusing your majesty’s authority,
misrepresenting your American subjects and prosecuting the most desperate
and irritating projects of oppression . . . .”).

21
happened to walk about with a weapon. Id. That was probably wrong
as a textual matter given that the statute didn’t have an intent-to-
terrorize requirement. 10 But by the time of the Glorious Revolution in
1688, the Statute seems to have come to be understood as containing an
implicit intent requirement. See id.
Whatever the merits of Sir John Knight’s Case, what’s more
important is the reaction it prompted in Parliament. Just three years
later, Parliament adopted the “predecessor to our Second Amendment”
in the form of the 1689 English Bill of Rights. Heller, 554 U.S. at 593.
The English Bill of Rights was the first English statute to explicitly
recognize a right to keep and bear arms for self-defense. See Bruen,
597 U.S. at 44–45. But it was a limited right: It protected only
Protestants (not Catholics) and restricted only the Crown (not future
Parliaments). 1 W. & M. c. 2 (1689) (Eng.), reprinted in 6 The Statutes of
the Realm, supra, at 143. Nevertheless, it “represented a watershed in
English history.” Bruen, 597 U.S. at 44. “Englishmen had never before
claimed . . . the right of the individual to arms.” Id. (alteration in original)
(internal quotation marks omitted).

10 It wasn’t until 65 years after enactment of the Statute of
Northampton that any going-armed law expressly required intent; even then,
the offense of intentionally going armed was a separate crime from the regular
going-armed offense. Patrick J. Charles, Scribble Scrabble, the Second
Amendment, and Historical Guideposts: A Short Reply to Lawrence Rosenthal
and Joyce Lee Malcolm, 105 Nw. U. L. Rev. 1821, 1831 (2011). And some
historical evidence suggests that, throughout the fourteenth century, kings
sent reminders “to the different sheriffs that the Statute of Northampton
should be strictly enforced as prohibiting the act of ‘going armed,’ not a
particular conduct with the intent to terrify.” Charles, Faces of the Second
Amendment, supra, at 13.

22
Still, the right had big caveats. For example, the right was only
to bear arms “allowed by law” as a “public allowance, under due
restrictions, of the natural right of resistance and self-preservation.”
1 Blackstone, supra, at *139 (cleaned up). In other words, the king was
free to restrict the right to keep and bear arms, including by banning
particular weapons. And because the Bill of Rights didn’t apply to
Catholics (or any other non-Protestants), the Protestant monarchs were
free to continue disarming them.
Though Blackstone didn’t take a position on the intent-to-
terrorize requirement, he did believe that going armed violated the
public peace by “terrifying the good people of the land.” 4 Blackstone,
supra, at *148. And Hawkins explained that an innocent intent like self-
defense didn’t automatically make carrying arms legal: Under the
Statute, a “man cannot excuse the wearing of such armor in public, by
alleging that such a one threatened him, and that he wears it for the
safety of his person from his assault.” 1 Hawkins, supra, 136 (cleaned
up). Even so, “no wearing of arms is within the meaning of this statute,
unless it be accompanied with such circumstances as are apt to terrify
the people.” Id. (cleaned up).
So it seems that the intent requirement was assessed based not
on the offender’s intent, but on whether a reasonable observer would
infer a dangerous intent from the way the weapon was carried. This is
consistent with Hawkins’s view that “persons of quality are in no danger
of offending against this statute by wearing common weapons . . . for
their ornament or defense, in such places, and upon such occasions, in
which it is the common fashion to make use of them.” Id. (cleaned up)

23
(emphases added). That was because such carrying wouldn’t cause “the
least suspicion of an intention to commit any act of violence or
disturbance of the peace.” Id. (cleaned up).
The Bruen Court found English history “ambiguous at best,” and
saw “little reason to think that the Framers would have thought it
applicable in the New World.” 597 U.S. at 39–40. I’d say the same when
it comes to statutes like our Subchapter A, because I can discern little
evidence that, by the time of the founding, English law would’ve justified
a lifetime ban on firearm possession without any evidence that someone
is dangerous. True, English monarchs had sometimes attempted to
disarm their political opponents, including Catholics. But even
Catholics weren’t entirely disarmed—they were allowed to keep
weapons sufficient “for the defense of their houses or persons.”
1 W. & M. c. 15 § 3 (1688) (Eng.), reprinted in 6 The Statutes of the
Realm, supra, at 72 (cleaned up). This really amounted to a prohibition
on keeping weapons of a quality or quantity more suited to war than
self-defense. In contrast, the protective order at issue here completely
disarms Noyes. Nor do the forest and game laws provide an adequate
analogue. To start, they only disarmed people in forests. True, some
kings simply redefined the “forests” to include cities, but even at their
most expansive the forest laws still permitted carrying in two-thirds of
England. Strickland & Hardy, supra, at 144. By contrast, the protective
order here disarms Noyes everywhere, forest or not. And while English
law sometimes countenanced the disarmament of the people—especially
political opponents—the whole point of the Second Amendment was to
prevent that from happening again, as the following section will show.

24
2
In contrast to England, early America didn’t embrace broad
disarmament. And for good reason. The Second Amendment was born
largely from a rejection of English practices—especially the disarming
of political opponents and religious minorities. “Through the[ ]
centuries, English law had disarmed not only brigands and highwaymen
but also political opponents and disfavored religious groups. By the time
of the founding, however, state constitutions and the Second
Amendment had largely eliminated governmental authority to disarm
political opponents on this side of the Atlantic.” Rahimi, 602 U.S. at
694. Here in America, we came to recognize the right to bear arms in
much more absolute terms.
That shouldn’t come as a surprise. “Our Founders, having
witnessed firsthand the indignities and abuses that overeager
governments can impose on their own citizens, believed in a citizen’s
right to bear arms for protection against, among other things, the state
itself.” Antonin Scalia, American Values and European Values (June
22, 2007), in Scalia Speaks, supra, at 29, 32. The Revolution started
with an attempt by British regulars to disarm the colonists. The British
army marched to seize weapons and gunpowder being stored in
Lexington and Concord, “confiscat[ing] firearms and gunpowder by
conducting house-to-house searches.” Kopel, supra, at 765–66.
American spies had warned the colonists ahead of time, though, and the
colonists had moved most of the weapons and gunpowder. In burning
the remaining gunpowder at Concord, the British only stoked the fires
of independence.

25
After winning the Revolutionary War, the Founders enshrined in
our founding charter the right that they regarded as given by God and
defended on the battlefield. At James Madison’s urging, our own Bill of
Rights expressly guarantees “the right of the people to keep and bear
Arms.” U.S. Const. amend. II; see 1 Annals of Cong. 431–32, 436–37
(1789) (Joseph Gales ed., 1834) (statement of Rep. Madison). Of course,
no “clause in the constitution could by any rule of construction be
conceived to give to Congress a power to disarm the people.” William
Rawle, A View of the Constitution of the United States of America 122
(Philadelphia 1825).
The U.S. Supreme Court has described the Second Amendment
as having its roots in the English Bill of Rights. Heller, 554 U.S. at 593.
That’s true, but only to a point. The English Bill of Rights was the
textual source of many important individual rights in England.
Blackstone cited it to explain that the right to keep and bear arms was
one of the fundamental rights of Englishmen. See 1 Blackstone, supra,
at *139. But to say that the Second Amendment was “derived from
English practice” risks painting an incomplete picture. The Second
Amendment was primarily a derogation of English practice. See
O’Scannlain, supra, at 401 (“[A] right to have arms is not among the
most ancient in the English tradition.”). After all, England continued to
disarm its citizens even after the English Bill of Rights was passed, both
in the colonies and in the homeland.
The Founders and the ratifying generation viewed this
disarmament as a violation, not of some by-the-king’s-grace privilege or
mere parliamentary promise, but of their natural right to keep and bear

26
arms. As Tucker explained, in England, like “in most governments[,] it
has been the study of rulers to confine this right within the narrowest
limits possible.” 1 Tucker, supra, at 300. Even though the English Bill
of Rights “seems at first view to counteract” the policy of disarmament,
it confined the right to bear arms to Protestants and was interpreted to
allow the government to ban “any farmer, or inferior tradesman, or other
person not qualified to kill game” from keeping a gun. Id. The result
was “that not one man in five hundred c[ould] keep a gun in his house
without being subject to a penalty.” Id.
The Founders viewed the pre-Norman era of Saxon rule as an
ideal of liberty—not contemporary English law, which honored the
right to bear arms mostly in the breach. Kopel, supra, at 765–68.
Many Founders “believed that the liberties of the Anglo-Saxons had
been destroyed by the Norman Conquest in 1066.” Id. at 767. This so-
called “Norman yoke” infringed on “the birthright of the English
people.” See 30 Wright & Miller’s Federal Practice & Procedure § 6342,
at 207 (1997). By characterizing post-Norman laws as “tyranny of an
alien King,” the Founders could “claim the benefit of those features of
the common law favorable to their cause, while ignoring limitations on
those rights as Norman importations.” Id. § 6345, at 461. The
consequence is that the Second Amendment was born out of a
distinctively American legal revolution.
That revolution wasn’t limited to the national constitution.
Several state constitutions had already adopted bear-arms provisions.
Pennsylvania, North Carolina, Vermont, and Massachusetts expressly

27
guaranteed the right to bear arms. 11 And Virginia, Delaware,
Maryland, New Hampshire, and New York guaranteed the right to a
well-regulated militia. 12 These provisions reflect a broad consensus that
protecting the keeping and bearing of arms was essential to liberty.
This state-level protection for the right to bear arms continued
after the States ratified the U.S. Constitution. “That of the nine state
constitutional protections for the right to bear arms enacted
immediately after 1789 at least seven unequivocally protected an
individual citizen’s right to self-defense is strong evidence that that is
how the founding generation conceived of the right.” Heller, 554 U.S. at
603. As Tucker explained, an American man “no more th[ought], of
going out of his house on any occasion, without his rifle or musket in his
hand, than an European fine gentleman without his sword by his side.”
5 Tucker, supra, app. at 19.

11 Pa. Const. of 1776, Declaration of Rights, art. XIII (“That the people

have a right to bear arms for the defence of themselves and the state . . . .”);
N.C. Const. of 1776, Declaration of Rights, art. XVII (“That the people have a
right to bear arms, for the defence of the State . . . .”); Vt. Const. of 1777, ch. I,
art. XV (“That the people have a right to bear arms for the defence of
themselves and the State . . . .”); Mass. Const. pt. 1, art. XVII (“The people have
a right to keep and bear arms for the common defence.”).
12 Va. Const. of 1776, Bill of Rights, § 13 (“That a well-regulated militia,

composed of the body of the people, trained to arms, is the proper, natural, and
safe defence of a free State . . . .”); Del. Declaration of Rights, § 18 (“That a well
regulated militia is the proper, natural and safe defence of a free
government.”); Md. Const. of 1776, Declaration of Rights, art. XXV (“That a
well-regulated militia is the proper and natural defence of a free
government.”); N.H. Const. pt. 1, art. XXIV (“A well regulated militia is the
proper, natural, and sure defence of a state.”); N.Y. Const. of 1777, art. XL
(“[T]he militia of this State, at all times hereafter, as well in peace as in war,
shall be armed and disciplined, and in readiness for service.”).

28
That said, early American law did impose some limits. Many of
these restrictions were based on English “going armed” laws—even
copying language from the English statutes verbatim. Bruen, 597 U.S.
at 46 (discussing a Massachusetts law that authorized arrest of “all
affrayers, rioters, disturbers, or breakers of the peace, and such as shall
ride or go armed offensively . . . by night or by day, in fear or affray of
their majesties liege people” (cleaned up)). Because they were based on
the Statute of Northampton, they likewise banned not all public
carrying of weapons, but only public carrying intended to terrorize. See
id. at 46, 50.
Early state supreme court opinions confirmed as much. Two
cases held that state law prohibited only the carrying of weapons with
the intent to terrorize. State v. Huntly, 25 N.C. 418, 420–23 (1843);
O’Neil v. State, 16 Ala. 65, 67 (1849). And the Tennessee Supreme Court
reasoned that if the Statute of Northampton was a part of Tennessee
law, it would be unconstitutional to the extent it criminalized merely
arming oneself. Simpson v. State, 13 Tenn. 356, 359–60 (1833).
Some States before the Revolution, and more after, banned
concealed carry. Bruen, 597 U.S. at 47–52. But none banned public
carry altogether. The prevailing view was that States could ban
concealed carry only if people could carry weapons openly instead. Id.
at 53. Kentucky was an outlier, insofar as its high court held that
banning concealed carry was unconstitutional even if the State
allowed open carry. Id.
Finally, various States imposed surety statutes that required at-
risk individuals to post a bond before they could carry weapons in public.

29
These laws, like many modern restraining orders, applied only to those
who were reasonably likely to cause an injury or breach the peace—such
as those who had threatened others with a deadly weapon in the past.
Id. at 55–56. Even then, the restrained person could continue to carry
a weapon if he posted a bond or proved that he needed it for self-defense.
Id. at 56–57. And while these statutes were on the books in a small
number of States, historians have unearthed precious few instances of
them ever being enforced. Id. at 58.
In all of this history, I see no suitable analogue to Subchapter A.
The State relies primarily on the going-armed and surety laws. But
those laws are not “relevantly similar.” See Rahimi, 602 U.S. at 692.
Start with going-armed laws. As noted above, while England
sometimes used these laws to disarm groups of political opponents
without any showing of dangerousness, that was never permitted here.
For example, the Tennessee Supreme Court signaled that it would be
unconstitutional to enforce a literal interpretation of the Statute of
Northampton—one that prohibited all public carry. See Simpson, 13
Tenn. at 359–60. The remaining States with these laws required some
proof of an intent to terrorize. Huntly, 25 N.C. at 423; O’Neil, 16 Ala. at
67. “A by-now-familiar thread runs through these [early] statutes: They
prohibit bearing arms in a way that spreads ‘fear’ or ‘terror’ among the
people.” Bruen, 597 U.S. at 50. Subchapter A, in contrast, has no
dangerousness requirement, so the trial court here didn’t make such a
finding before disarming Noyes.
One other distinction is worth noting: The Rahimi Court noted
that Zackey Rahimi’s penalty under Section 922(g)(8) was consistent

30
with that of going-armed laws, in part because “temporary
disarmament” was a permissible lesser punishment than imprisonment,
which likewise results in disarmament. 602 U.S. at 699. But the
protective order here isn’t temporary; it’s permanent. Permanent
disarmament outside of prison might be less restrictive than temporary-
to-permanent disarmament in prison (depending on the length of the
prison sentence). But the Second Amendment requires a “relevantly
similar” analogue. See id. at 692. A permanent, categorical ban on
firearm possession is too much of a stretch to fit within the tradition of
going-armed laws as they existed in the States.
Surety laws don’t fit for the same two reasons. Surety laws
required judicial determinations of individualized dangerousness and
were only temporary. Id. at 699. Unlike surety laws and Section
922(g)(8), the protective order against Noyes is permanent and was
predicated on no such finding.
Moreover, the forest and game laws are an altogether improper
analogue given the harsh criticism they received in America. Tucker
famously commented that “[w]hoever examines the forest, and game
laws in the British code, will readily perceive that the right of keeping
arms is effectually taken away from the people of England.” 2 Tucker,
supra, at *144 n.41. And Rawle stated that the “arbitrary code for the
preservation of game in [England] has long disgraced” the freedoms of
which England boasted. Rawle, supra, at 122. Even Blackstone, an
avowed monarchist, observed that “the prevention of popular
insurrections and resistance to government by disarming the people, is

31
oftener meant than avowed by the makers of forest and game laws.” Id.
at 122–23 (citing 2 Blackstone, supra, at *412).
The militia laws don’t work either. 13 A well-regulated—that is,
an orderly—militia is “necessary to the security of a free State.” U.S.
Const. amend. II. “Although in actual war the service of regular troops
are confessedly more valuable [than the service of the militia], yet while
peace prevails, and in the commencement of a war before a regular force
can be raised, the militia form the palladium of the country.” Rawle,
supra, at 121. So the “duty of the state government is to adopt such
regulations as will tend to make good soldiers.” Id. at 122.
England recognized this principle too. The Anglo-Saxons relied
almost exclusively on the militia for their national defense. Fields &
Hardy, supra, at 3. And for the first several hundred years of England’s
history, kings required freemen to keep certain weapons for use in the
militia. E.g., 13 Edw. c. 6 (1285) (Eng.), reprinted in 1 The Statutes of
the Realm, supra, at 96–98. It wasn’t until the seventeenth century that
kings began disarming the militia. For example, under James I,
Parliament repealed many militia laws and centralized arms
possession. Statute of Winchester 1603, 1 Jac., c. 25 (Eng.), reprinted in

13 The State also argues that the protective order here fits within the

tradition of disarming mentally ill individuals. No doubt that such a historical
tradition exists, but the argument fails for two reasons. First, mental illness
isn’t a ground for the protective order against Noyes, and likely couldn’t have
been, since it’s not a ground that Subchapter A recognizes. Second, the record
contains no evidence that Noyes has been diagnosed as mentally ill, and the
State points only to “[Noyes’s] ‘crazy’ behavior [as] support[ing] an implied
finding that [Noyes] was ‘mentally ill.’ ” That’s not enough to justify disarming
him under any law of which I’m aware.

32
4 The Statutes of the Realm, supra, at 1050. His successors continued
that practice throughout the rest of the century by selectively disarming
members of the militia thought to be loyal to their political opponents.
O’Scannlain, supra, at 401.
That doesn’t support a complete and permanent ban on firearm
possession. But it also doesn’t help Noyes. Participating in the militia
(and the accompanying requirement to keep arms) was a duty, not a
right. It’s unclear whether Noyes is a member of the “militia,” within
the original public meaning of that term, given that the protective order
and his criminal record may impact his eligibility for military service.

* * *
In sum, it seems to me that Subchapter A lacks a historical
analogue sufficient to uphold its permanent-disarmament orders.
Although I remain open to other historical-analogue arguments that the
State or amici may present in the future, Subchapter A appears to
violate the Second Amendment in at least some applications.

B
Even if Subchapter A passes Second Amendment muster, though,
that’s far from the end of the matter. After all, Texas has its own
Constitution, which may provide different or greater protections. See Tex.
Dep’t State Health Servs. v. Crown Distrib. LLC, 647 S.W.3d 648, 664–81
(Tex. 2022) (Young, J., concurring). There’s good reason to think it does.
The Arms Clause of the Texas Constitution guarantees as follows:
Every citizen shall have the right to keep and bear arms in
the lawful defence of himself or the State; but the
Legislature shall have power, by law, to regulate the
wearing of arms, with a view to prevent crime.

33
Tex. Const. art. I, § 23; see also id. art. I, § 29 (“To guard against
transgressions of the high powers herein delegated, we declare that
every thing in this ‘Bill of Rights’ is excepted out of the general powers
of government, and shall forever remain inviolate, and all laws contrary
thereto, or to the following provisions, shall be void.”). Although at face
value the phrases “in lawful defence” and “regulate the wearing of arms,
with a view to prevent crime” may appear to narrow the right, that
reading is inconsistent with the original public meaning of the Arms
Clause. Indeed, we’ve long held that the right to bear arms is absolute
within its scope, so defining the scope is the ultimate question.

1
Texans have enjoyed a right to bear arms since the founding of
the Republic of Texas. Some stereotypes are true: “The people of Texas
are now, and ever have been, emphatically an armed population.”
Choate v. Redding, 18 Tex. 579, 581 (1857) (Hemphill, C.J.); see also
James W. Paulsen, A Short History of the Supreme Court of the Republic
of Texas, 65 Tex. L. Rev. 237, 255 (1986) (recounting then-Judge
Hemphill’s use of his bowie knife to disembowel a courtroom assailant).
Texas, like the United States, was founded in a war with an
enemy that sought to disarm and disable her. General Antonio Lopez
de Santa Anna was a dictator who repealed the Mexican Constitution
and “centralized the government, converting what had been states into
mere provinces.” William J. Chriss, Six Constitutions Over Texas 16
(2024). When it became clear that Santa Anna had fallen into full-blown
despotism, “war and independence became the only alternative.” Id. at
24. That wasn’t just true for Texas, as Santa Anna’s usurpation sparked

34
revolts throughout Mexico. See Hubert Howe Bancroft, History of the
North Mexican States and Texas: Vol. II 1801–1889, reprinted in 16 The
Works of Hubert Howe Bancroft 152–53 (San Francisco, History Co.
1889). Santa Anna defeated those loyal to the Mexican Constitution of
1824 and the republican principles it embodied. Id. But not Texas.
When Santa Anna’s army demanded that the people of Gonzales
surrender their cannon, they declined. Stephen L. Hardin, Battle of
Gonzalez, in 3 The New Handbook of Texas 228, 228 (Ron Tyler et al.
eds., 1996). As a symbol of defiance, Caroline Zumwalt and Eveline
DeWitt made a flag with the phrase “come and take it” stitched next to
an image of their town’s cannon. See also Thomas Ricks Lindley,
Gonzalez “Come and Take It” Cannon, in 3 The New Handbook of Texas,
supra, at 230, 230. That flag became a symbol of the Texas Revolution:

35
Texas then declared independence from Mexico and set up a new
government before defeating Santa Anna’s forces at the Battle of San
Jacinto shortly thereafter. 14
One of the chief grievances in Texas’s Declaration of
Independence was that the Mexican government, under Santa Anna,
had “demanded us to deliver up our arms, which are essential to our
defence—the rightful property of freemen—and formidable only to
tyrannical governments.” The Declaration of Independence (Repub.
Tex. 1836), at 5, reprinted in 1 Gammel, supra, at 1063, 1065). And
when this and other grievances “reached that point at which forbearance
ceases to be a virtue,” the People of Texas “took up arms in defence of
the national constitution.” Id. at 6.
The Declaration’s promise was met in the Republic’s Constitution
of 1836, which guaranteed that “[e]very citizen shall have the right to
bear arms in defence of himself and the republic.” Repub. Tex. Const. of
1836, Declaration of Rights, cl. 14, reprinted in 1 Gammel, supra, at
1069, 1084. Partly because of the “realities of country life,” the Republic
of Texas guaranteed “a right to weaponry beyond that found in the

14 Texas’s Declaration of Independence relied on principles of
inalienable liberties and reasserted the right to dispense with tyranny, but it
did so “in terms somewhat different from the American Declaration from which
Texas’s was obviously adapted.” Chriss, supra, at 25. “As [Texas] saw it, this
was not the mere severance of connections between a metropolis and a
peripheral area in the way Jefferson had put the matter to Britian and the
world sixty years before. Rather this was a real Hobbesian/Lockean state of
chaos that demanded immediate action because . . . ‘the first law of nature, the
right of self-preservation . . . [obligated them] to abolish such government.’”
Id. (quoting The Declaration of Independence (Repub. Tex. 1836), at 4,
reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822–1897, at 1063, 1064
(Austin, Gammel Book Co. 1898).

36
Second Amendment.” Chriss, supra, at 31. And unlike many federal
constitutional rights, which can seemingly be overcome by necessity, real
or perceived, the Constitution of 1836 made its rights absolute, declaring
that they “shall never be violated on any pretence whatever.” Repub. Tex.
Const. of 1836, Declaration of Rights pmbl., reprinted in 1 Gammel,
supra, at 1082. So the result was that the Texas Constitution’s right to
bear arms was “significantly broader than [its] US counterpart[].”
Chriss, supra, at 31. In interpreting this same language from the Arms
Clause, this time under the Constitution of 1845, we confirmed that the
“right of a citizen to bear arms, in the lawful defense of himself or the
state, is absolute.” Cockrum v. State, 24 Tex. 394, 401 (1859).
Texas’s militia immediately put the right to bear arms to work.
In 1836, the First Congress of the Republic of Texas passed a law
requiring then-President Sam Houston to raise “a battalion of mounted
riflemen . . . for the protection of the frontier.” Act approved Dec. 5,
1836, 1st Cong., R.S., § 1, 1836 Repub. Tex. Laws 53, 53, reprinted in 1
Gammel, supra, at 1113, 1113. And the First Congress paid for each
rifleman “to furnish himself with a suitable, serviceable horse, a good
rifle, and one brace of pistols.” Id. § 2; see id. § 3.
The very next law that the First Congress passed enrolled most
men into the militia and required each man to furnish himself with
either “a good musket, a sufficient bayonet and belt, six flints, knapsack
and cartridge box, with twenty-four suitable ball cartridges” or “a good
rifle, yauger, or shot gun, knapsack, shot pouch, powder horn, fifty balls
suitable to the calibre of his gun, and a half pound of powder.” Act
approved Dec. 6, 1836, 1st Cong., R.S., § 1, 1836 Repub. Tex. Laws 54,

37
54–55, reprinted in 1 Gammel, supra, at 1114, 1114–15. That law also
exempted any arms and ammo belonging to militiamen “from all suits,
seizures, or sales.” Id. So by the end of the First Congress, Texas had
expanded its absolute right to keep and bear arms: Not only could the
government not seize your arms, but now your neighbor couldn’t sue you
for them either.
Like many other laws, Texas’s right to bear arms changed
following the Civil War. As a condition for readmission to the Union,
Texas had to adopt a new constitution—after all, we couldn’t have Texas
officials swearing loyalty to the Confederacy and touting a pretended
“right” to keep slaves. See Tex. Const. of 1861, art. VII, § 1; id. art. VIII.
Texas’s first attempt at a rewrite was the Constitution of 1866.
Although then-President Andrew Johnson accepted that iteration as
satisfying Texas’s readmission requirements, the federal Congress
rejected it. See Chriss, supra, at 105. Instead, Congress passed the First
Reconstruction Act, which put Texas under martial law until it ratified
both the Fourteenth Amendment and a new constitution. Id. at 106.
Texas complied with Congress’s demands and ratified the
Constitution of 1869, which differed significantly from Texas’s prior
constitutions. Carl H. Moneyhon, Reconstruction, in 5 The New
Handbook of Texas, supra, at 474, 477. Relevant here, the new
constitution narrowed the scope of the right to keep and bear arms. The
new version of the Arms Clause provided that “[e]very person shall have
the right to keep and bear arms, in the lawful defence of himself or the
State, under such regulations as the Legislature may prescribe.” Tex.
Const. of 1869, art. I, § 13 (emphasis added).

38
The Constitution of 1869 satisfied Congress, which readmitted
Texas to the Union in 1870, but nearly everyone in the Lone Star State
was unhappy with it. See Janice C. May, The Texas State Constitution:
A Reference Guide 10–13 (1996); Josh Morrow, There Is Only One Texas
Constitution, 52 St. Mary’s L.J. 765, 775 (2021). Although the cause of
this discontent has “been the subject of sustained historical debate,”
Morrow, supra, at 775 n.50, what’s important is that Texas promptly
called another constitutional convention, which resulted in the
Constitution of 1876.
The Constitution of 1876 came with another change to the Arms
Clause, which was rewritten to read as it does to this day: “Every citizen
shall have the right to keep and bear arms in the lawful defence of
himself or the State; but the Legislature shall have power, by law, to
regulate the wearing of arms, with a view to prevent crime.” Tex. Const.
art. I, § 23. In so doing, the People restricted the Legislature’s general
power to “prescribe” “regulations” about the keeping and bearing of
arms, instead limiting that power to “regulat[ing] the wearing of arms”
to “prevent crime.” By narrowing the circa-1869 limitation, in other
words, the Constitution of 1876 expanded the scope of the right.
For that reason, those who cite English v. State, 35 Tex. 473
(1871), or State v. Duke, 42 Tex. 455 (1875), for the notion that the
federal and state constitutions don’t protect public carry for self-defense
are wrong. 15 First, English and Duke were decided under the short-lived

15 For example, the State of New York wrongly relied on English to

defend its public-carry ban in Bruen, Brief for Respondents at 28, 39, 597 U.S.

39
Constitution of 1869, which gave the Legislature a broad and
unqualified power to regulate the keeping and bearing of arms—a power
that the People of Texas have since curtailed. Second, any reliance on
those cases ignores our decision in Cockrum, which recognized the
“absolute” right of armed self-defense for law-abiding citizens—though
not for homicidal horse thieves. 24 Tex. at 401. Cockrum, which was
decided under the unlimited language of the Constitution of 1845, says
far more about how early Texans saw their rights than English or Duke.
That’s important because the Constitution of 1876 returned the right to
something resembling its original scope.

2
Within this historical context, the two phrases that might seem
to constrict the Arms Clause may not render the right all that narrow.
Start with the phrase “in the lawful defence of himself or the
State.” Recall that the right to bear arms under the Constitutions of
1836 and 1845 was absolute. That was true even though the
Constitution of 1836 used the phrase “in defence of himself and the
republic,” Repub. Tex. Const. of 1836, Declaration of Rights, cl. 14,
reprinted in 1 Gammel, supra, at 1069, 1084, and the Constitution of
1845 used the almost identical phrase “in the lawful defence of himself
and the State,” Tex. Const. of 1845, art. I, § 13. In the absence of
evidence that the original public meaning of that phrase changed from

1, and the State of New Jersey recently made the same mistake in defending
its “sensitive places” statute in Koons v. Attorney General, Opening Brief of
Defendants-Appellants at 14–16, 156 F.4th 210 (3d Cir. 2025).

40
1845 to 1876, that phrase doesn’t limit the scope of the right now any
more than it did back then.
Of course, the absolute nature of the right to bear arms isn’t an
excuse to commit or aid crimes. Even in Texas’s early days, if you used
weapons as a part of a crime, you would be subject to an enhanced
penalty. E.g., 1856 Tex. Penal Code arts. 325–26. If you gave someone
else weapons to help him commit a crime, you would be liable as an
accomplice. Id. arts. 216, 219, 321. And if there was an allegation that
your weapons were stolen or evidence of an insurrection, a court could
issue a search warrant requiring them to be brought before the court for
inspection. 1856 Tex. Code Crim. Proc. arts. 301(1), (4)–(5).
This understanding fits squarely within the phrase “in the lawful
defence.” Tex. Const. of 1845, art. I, § 13 (emphasis added). In interpreting
an 1856 statute that enhanced sentences for homicides committed with
bowie knives, we acknowledged the constitutional “right to carry a bowie-
knife for lawful defense.” Cockrum, 24 Tex. at 402. 16 But we held that the
Legislature could still “affix a punishment to the abuse of this right,” so
long as it wasn’t so severe as to “deter the citizen from its lawful exercise.”

16 The dangerousness of the arm doesn’t affect whether the right is itself

absolute within its proper scope. As we explained in Cockrum: “[A bowie-knife]
is an exceeding[ly] destructive weapon. . . . The gun or pistol may miss its aim,
and when discharged, its dangerous character is lost, or diminished at least.
The sword may be parried. With these weapons men fight for the sake of the
combat, to satisfy the laws of honor, not necessarily with the intention to kill,
or with a certainty of killing, when the intention exists. The bowie-knife differs
from these in its device and design; it is the instrument of almost certain death.
He who carries such a weapon, for lawful defense, as he may, makes himself
more dangerous to the rights of others, considering the frailties of human
nature, than if he carried a less dangerous weapon.” 24 Tex. at 402–03.

41
Id. at 403. That caveat is important. The right to keep and bear an arm
implies the right, in a proper emergency, to use it. Id. at 402–03. So any
statute requiring a person to wear a weapon in a manner rendering it
useless for self-defense would be clearly unconstitutional. Id. So, for
example, even though gutting a man with a bowie knife over an insult
doesn’t qualify as “lawful defence,” a statute prohibiting the use of a bowie
knife altogether would likely go too far. See id.
Now for the phrase, “the Legislature shall have power, by law, to
regulate the wearing of arms, with a view to prevent crime.” Three
points bear emphasis. First, “regulate” doesn’t mean “prohibit.” Indeed,
the delegates to the Constitutional Convention of 1875 chose not to adopt
an amendment to the Clause that would’ve allowed the Legislature to
“prohibit” the wearing of arms. Debates in the Texas Constitutional
Convention of 1875, at 294 (Seth Shepard McKay ed., 1930).
And we know that the scope of the limitation is narrower—such
that the scope of the right is broader—than it was under the Constitution
of 1869. So the Arms Clause can’t encompass some free-roaming
legislative power to restrict rights. Even if that conclusion weren’t
obvious from the textual history of the Arms Clause, it’d still follow from
the Clause’s historical context. After all, Santa Anna tried to assert such
a free-roaming power to disarm Texans, and it didn’t go well for him.
Texas chose to fight a revolution rather than surrender her arms.
Second, the provision limiting regulatory power to “wearing” an
arm presumptively deprives the government of the power to regulate
other arms-related acts. The negative-implication canon directs us to a
reading under which the inclusion of the word “wearing” reasonably

42
implies the exclusion of all other things one might do with an arm.
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 107–11 (2012). And because we “avoid interpreting words
in a way that renders them pointless,” it would be (at best) odd to
interpret “wearing” an arm to mean the same thing as “keep[ing] and
bear[ing]” an arm. Id. at 175. After all, it’s no more our “function to
revise by subtraction than by addition.” Id. at 174. Words often have
overlapping meanings, particularly those in lists, but we try to read
them as having “some independent operation.” Id.
Here, dictionaries contemporaneous with the adoption of the
Constitution indicate that the ordinary public meaning of “wearing” an
arm had some overlap with “bearing” an arm and perhaps also with
“keeping” an arm. But at minimum, “wearing” surely covered a
narrower set of acts than “keeping” or “bearing” did. See State v.
Villanueva, 686 S.W.3d 752, 758 (Tex. Crim. App. 2024) (Slaughter, J.,
dissenting from refusal of petition for discretionary review).
According to the 1886 edition of Webster’s Dictionary, “keep”
meant to have “custody; guard; care [or] heed.” Keep, Webster’s Complete
Dictionary of the English Language (Chauncey A. Goodrich et al. eds.,
London, George Bell & Sons 1886). This was consistent with the 1882
version of Samuel Johnson’s Dictionary, which defined “keep” as “[r]etain;
not lose” or “[h]old in custody; have in custody.” Keep, A Dictionary of the
English Language (Robert Gordon Latham ed., London 1882).
Webster’s defined “bear” as “possess or carry” or “wear; as, to bear
a sword, badge, or name.” Bear, Webster’s Complete Dictionary, supra

43
(emphasis omitted). And Johnson’s defined it simply as “[c]arry.” Bear,
A Dictionary of the English Language, supra.
“Wear” appears to have been a subset of “bear.” According to
Webster’s, “wear” meant “carry or bear upon the person . . . as an article
of clothing, decoration, warfare, or the like; to have appendant to one’s
body . . . ; to wear a sword.” Wear, Webster’s Complete Dictionary, supra
(emphasis omitted). And according to Johnson’s, “wear” meant to
“[c]arry appendant to the body.” Wear, A Dictionary of the English
Language, supra.
Although the People’s choice to use both “wear” and “bear” in the
same constitutional provision may make them appear redundant, we
can comfortably read them with “independent operation[s].” See Scalia
& Garner, supra, at 176. That’s because the grant of power to the
Legislature as to the “wearing” of arms is a carveout from the People’s
general right. In other words, the People have a right to “bear”—that
is, to “possess or carry”—arms except where the Legislature regulates
the “wearing”—that is, the carrying upon one’s body—of arms. There
may well be additional historical explanations for these textual choices,
too. In any event, absent evidence that’s thus far wholly lacking,
“wearing” arms is far narrower than, and thus independently operable
from, “keeping” arms.
Thus, the original public meaning of the right to “bear” arms
would’ve encompassed, at minimum, “both the carrying of weapons ‘on’
the person’s body, such as carrying arms in an open hand or holstered
on a belt, as well as possession ‘about’ the person’s body, such as
transporting arms in a lock box on a stagecoach.” Villanueva, 686

44
S.W.3d at 758 (Slaughter, J., dissenting from refusal of petition for
discretionary review). But the Legislature’s prerogative to regulate the
“wearing” of arms would’ve been limited to the carrying of weapons “on”
the person. Id. It wouldn’t have extended to regulating even the
carrying of arms “about” the person because a “person who carried
weapons in a lock box on a stagecoach,” for example, wouldn’t have been
“said to have ‘worn’ arms.” Id.
As a result, it’s very possible that the Texas Constitution only
allows the Legislature to regulate the carrying of arms on the person
and not the possessing, conveying, or storing of arms. If that’s correct,
then, under a strict-scrutiny framework, the Legislature could only
regulate the possession, conveyance, or storing of arms if the right
could be overcome by a compelling government interest. But if, as I
suspect, the right is absolute, it can go no further than restricting the
“wearing” of arms. 17
Third, it’s unclear what standard we should apply to determine
whether a regulation was enacted “with a view to prevent crime.” On
the one hand, the phrase “a view to prevent crime” could mean that we
must strictly scrutinize laws regulating the wearing of arms—as we do
with other fundamental rights—to determine whether they’re narrowly
tailored to the government’s interest in preventing crime. On the other
hand, the phrase could mean that we must defer to the Legislature’s

17 Given that the tiers of scrutiny didn’t appear in federal jurisprudence

until the 1930s, it’s doubtful that Texans understood their rights to be subject
to that framework, let alone to rational-basis review, when they adopted their
constitution in 1876. See generally United States v. Carolene Prods. Co., 304
U.S. 144, 152 & n.4 (1938) (describing tiers of judicial scrutiny).

45
policy judgments as long as the Legislature has a rational basis for
believing that its statutes will prevent crime. On the latter view, the
phrase would mean something similar to the term “necessary and
proper” in the U.S. Constitution: something convenient or useful—or
even something that could be convenient or useful—for preventing
crime. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 418 (1819);
U.S. Const. art. I, § 8.

* * *
The right to keep and bear arms under our Constitutions of 1836
and 1845 was absolute within its scope. We presume the Legislature is
aware of our opinions when it enacts laws or proposes constitutional
amendments. Similarly, we must assume that the People acted
intentionally when they chose to reinstate language we previously said
created an absolute right. In short, the Texas Constitution probably
confers an absolute right to keep and bear arms, with the limited
exception that the Legislature can regulate the wearing of arms to
prevent crime. 18 So the protective order here, with its blanket ban on
firearm possession at any time in Voges’s life, is hard to square with
our Arms Clause.

18 The notion of absolute constitutional rights isn’t an antiquated one.

Just last year, we held that the Texas Constitution’s Religious Services Clause
“is absolute and categorical, meaning it forbids governmental prohibitions and
limitations on religious services regardless of the government’s interest in that
limitation or how tailored the limitation is to that interest.” Perez v. City of
San Antonio, 715 S.W.3d 709, 730 (Tex. 2025).

46
IV
The record makes clear that Jonathan Noyes grievously wronged
Samantha Voges. Nobody deserves such abuse. Noyes will remain
subject to the district court’s permanent protective order as this case
proceeds on remand. That means he’ll still be forbidden to contact
Voges, forbidden to harass or threaten her, forbidden to go near her
home or place of work. It also means Noyes cannot lawfully own a
firearm as long as our judicial system continues to evaluate his
constitutional claims.
Though I haven’t undertaken an exhaustive historical study of
the scope of gun rights under the federal or state constitutions, I hope
that the lower courts, counsel, amici, and scholars will try to do so. But
it’s been about a century since this Court has explained what protections
our federal and state constitutions afford to those who wish to exercise
their long-standing and hard-fought right to keep and bear arms. The
People of Texas shouldn’t have to endure another hundred years of
silence from this Court about the contours of this cornerstone right.
Texans deserve clarity—not just from Washington but from Austin too.

James P. Sullivan
Justice

OPINION FILED: _____________

47

Supreme Court of Texas
══════════
No. 24-0023
══════════

Jonathan Timothy Noyes,
Petitioner,

v.

The State of Texas for the Protection of Samantha Jo Voges,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════

PER CURIAM

JUSTICE SULLIVAN filed a concurring opinion, in which Justice
Devine, Justice Young, and Justice Hawkins joined.

JUSTICE HAWKINS filed a concurring opinion, in which Justice
Young and Justice Sullivan joined.

Petitioner Jonathan Noyes argues that the permanent protective
order issued against him, which prohibits Noyes from possessing any
firearm for the remainder of his life, violates his fundamental rights to
keep and bear arms under the United States and Texas Constitutions.
The lifetime order issued after a bench hearing in which the trial court
found reasonable grounds to believe that Noyes had engaged in criminal
stalking. But just a few months after the court of appeals affirmed, the
United States Supreme Court issued its decision in United States v.
Rahimi, 602 U.S. 680 (2024), which addressed the circumstances under
which an individual may be disarmed and the permissible duration of
that disarmament. The court of appeals did not have the benefit of the
United States Supreme Court’s decision in Rahimi when it confronted
Noyes’s constitutional challenges, which we hold have been sufficiently
preserved. Accordingly, and without hearing oral argument, we grant
the petition for review, vacate the judgment of the court of appeals, and
remand the case to that court for further proceedings. See TEX. R. APP.
P. 59.1, 60.2(f).

OPINION DELIVERED: May 15, 2026

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