Texas GVR Remand Requires Merits Review of Second Amendment and Texas Arms Clause Challenges to Lifetime Firearm Bans in Chapter 7B Protective Orders

Introduction

In Jonathan Timothy Noyes v. The State of Texas ex rel. Samantha Jo Voges (Tex. May 15, 2026), the Supreme Court of Texas issued a grant-vacate-remand (GVR) to the Third Court of Appeals to consider constitutional challenges that the court of appeals had declined to reach on preservation grounds. Justice Sullivan, joined by Justices Devine, Young, and Hawkins, concurred and used the remand posture to frame a broader warning: Texas courts have been largely silent for decades on the modern meaning of the Second Amendment and the Texas Constitution’s Arms Clause, and Chapter 7B protective orders—especially those imposing lifetime firearm bans—present difficult questions after United States v. Rahimi, 602 U.S. 680 (2024).

The dispute arises from a stalking protective order issued under Subchapter A of Chapter 7B of the Texas Code of Criminal Procedure. The order contains extensive no-contact and stay-away provisions, and—most importantly for this proceeding—a firearm prohibition lasting “for the rest of Voges’s life,” i.e., a potentially lifelong disarmament of Noyes.

Summary of the Opinion

Justice Sullivan concurs in the Court’s decision to remand. The concurrence’s principal contributions are threefold:

1. The court of appeals should not have refused to reach the constitutional questions on preservation grounds. The concurrence notes Noyes raised the Second Amendment and Arms Clause objections in his new-trial motion, satisfying Texas’s “generous forfeiture rules.”
2. Chapter 7B, by its text, authorizes protective orders that can last for the lives of the offender and victim. The concurrence rejects Noyes’s argument that Family Code § 85.025’s two-year limit (absent additional findings) constrains Chapter 7B orders, reasoning the Family Code provision applies only to orders “under this subtitle,” while Chapter 7B expressly allows life-of-offender-and-victim duration in Article 7B.007(a).
3. Serious constitutional concerns remain. Applying New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022) and reading United States v. Rahimi, 602 U.S. 680 (2024) as permitting disarmament tied to a “credible threat” and of “limited duration,” the concurrence suggests Chapter 7B is constitutionally vulnerable as applied where it (a) requires no finding of “dangerousness/credible threat” and (b) imposes lifetime disarmament.

Analysis

1) Precedents Cited

Prudential remand and “final review, not first view”

• Rattray v. City of Brownsville, 662 S.W.3d 860 (Tex. 2023) (quoting Zivotofsky v. Clinton, 566 U.S. 189 (2012)): The concurrence relies on these cases for the institutional principle that higher courts should generally allow lower courts to address legal issues first. This supports the GVR posture: the Texas Supreme Court is positioning itself to review a developed record and analysis rather than decide the Second Amendment and Texas Arms Clause questions in the first instance.

Constitutional avoidance

• Paxton v. Annunciation House, Inc., 719 S.W.3d 555 (Tex. 2025): Cited for the familiar sequencing rule—if the case can be resolved on non-constitutional grounds (e.g., statutory authority), courts should do so. Justice Sullivan nonetheless concludes the statute does authorize lifetime orders, making the constitutional questions unavoidable on remand.

The Second Amendment’s operative framework

• District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010): The concurrence treats these as the modern reset—recognition of an individual right and incorporation against the states—framing the long judicial “silence” that allowed broad regulation without sustained constitutional analysis.
• New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022): Provides the controlling methodology: the government must “affirmatively prove” the challenged regulation is consistent with “the Nation’s historical tradition of firearm regulation.” The concurrence uses Bruen to evaluate whether analogues exist for lifetime disarmament without individualized dangerousness findings.
• United States v. Rahimi, 602 U.S. 680 (2024): The concurrence treats Rahimi as confirming a narrow proposition: temporary disarmament is permissible where a court finds the person poses a “credible threat” to another’s physical safety. Justice Sullivan argues Chapter 7B, as applied, may diverge from Rahimi in two ways—no dangerousness requirement and lifetime duration.

Historical “going armed,” surety laws, and interpretive debates

• Sir John Knight's Case (1686) 87 Eng. Rep. 75; 3 Mod. 117 and the Statute of Northampton discussion in New York State Rifle & Pistol Ass'n v. Bruen: Used to illustrate why some “going armed” restrictions are historically tied to terrorizing conduct rather than mere possession, and why those restrictions may not justify categorical, lifelong bans.
• State v. Huntly, 25 N.C. 418 (1843) and O'Neil v. State, 16 Ala. 65 (1849): Cited as state-court confirmations that “going armed” offenses historically turned on conduct that spreads “fear” or implies a threatening intent.
• Simpson v. State, 13 Tenn. 356 (1833): Invoked for the proposition that a literal, broad reading of Northampton-like prohibitions could conflict with an American constitutional right to arms.
• Range v. Attorney General, 124 F.4th 218 (3d Cir. 2024) (Matey, J., concurring) and Koons v. Attorney General, 156 F.4th 210 (3d Cir. 2025): Not controlling Texas authority, but used to situate current federal appellate debates about historical analogues and “sensitive places.”

Texas constitutional tradition and prior Texas cases

• Cockrum v. State, 24 Tex. 394 (1859) and Choate v. Redding, 18 Tex. 579 (1857): The concurrence uses these as foundational evidence of an early Texas understanding that the right to bear arms “is absolute within its scope,” while still permitting punishment for abuse (e.g., criminal misuse).
• English v. State, 35 Tex. 473 (1871) and State v. Duke, 42 Tex. 455 (1875): The concurrence limits their relevance because they were decided under the Reconstruction-era 1869 Constitution, which granted broader legislative power over arms than the 1876 Constitution’s narrower “regulate the wearing of arms” language.
• Tex. Dep't State Health Servs. v. Crown Distrib. LLC, 647 S.W.3d 648 (Tex. 2022) (Young, J., concurring): Cited for the proposition that Texas constitutional provisions may supply different or greater protections than the federal floor—supporting independent analysis under Article I, § 23.
• Perez v. City of San Antonio, 715 S.W.3d 709 (Tex. 2025): The concurrence analogizes to Texas constitutional provisions that this Court has deemed “absolute and categorical,” suggesting the Arms Clause might be similarly structured as an absolute right with a limited carveout.
• Harris County v. Annab, 547 S.W.3d 609 (Tex. 2018); Ferguson v. Tex. Dep't Pub. Safety, 629 S.W.3d 903 (Tex. 2021) (Blacklock, J., dissenting from denial of petition for review); Masters v. State, 685 S.W.2d 654 (Tex. Crim. App. 1985); Collins v. State, 501 S.W.2d 876 (Tex. Crim. App. 1973): These are presented as examples of sporadic or, in the concurrence’s view, flawed Texas treatment of the right to bear arms—underscoring the need for clearer doctrine.

Interpretation of “prevent crime” and analogies to enumerated powers

• McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819): Used as an analogy when the concurrence explores whether “with a view to prevent crime” should be treated like a deferential “necessary and proper”-type standard or something closer to strict scrutiny. The concurrence does not resolve the standard, but signals that text and history may suggest a more bounded legislative power than modern means-end review.

2) Legal Reasoning

A. Statutory authority: Chapter 7B vs. Family Code § 85.025

Justice Sullivan’s statutory analysis is comparatively concrete and likely to be influential on remand:

• Textual boundary: Family Code § 85.025 applies only to “an order under this subtitle,” while Chapter 7B orders are not “under” that Family Code subtitle.
• Anti-superfluity: Chapter 7B.007(a) contains its own two-year default rule and expressly authorizes orders “for the duration of the lives of the offender and victim.” Reading the Family Code’s two-year cap into Chapter 7B would make Article 7B.007(a) partially redundant.
• “Except as otherwise provided” clause: Even if Family Code procedures are incorporated by Article 7B.008, Article 7B.007 “otherwise provide[s]” on duration.

This reasoning largely establishes that the case cannot be disposed of by construing Chapter 7B as silently subject to the Family Code’s extra-findings regime.

B. Second Amendment: why Rahimi may not save lifetime Chapter 7B disarmament

The concurrence treats Bruen and Rahimi as setting two relevant “guardrails”:

• Individualized threat finding: Rahimi upheld temporary disarmament where the person was found to pose a “credible threat” to physical safety. The concurrence asserts Chapter 7B does not require an equivalent finding (and thus the trial court did not make one).
• Limited duration: Rahimi relied in part on the temporary nature of the restraint (one to two years). A lifetime prohibition is materially different in kind, not merely degree.

From there, the concurrence conducts a historical-analogue inquiry, canvassing English and early American restrictions (going-armed rules, surety regimes, forest/game laws) and concluding—at least preliminarily—that no tradition supports “disarm[ing] someone for life without a finding of dangerousness.”

C. Texas Arms Clause: an “absolute right” with a narrow, textually limited carveout

The concurrence’s most novel doctrinal suggestion concerns Article I, § 23:

• Historical continuity: From the Republic of Texas through early statehood, Texas treated arms-bearing as central to self-defense and resistance to tyranny, with Cockrum v. State describing the right as “absolute” within its scope.
• 1876 narrowing of legislative power: The 1869 Constitution allowed regulation “as the Legislature may prescribe,” but the 1876 Constitution replaced that with a narrower authority to “regulate the wearing of arms, with a view to prevent crime.”
• Textual implication: By empowering regulation of “wearing” (carrying on the person) rather than “keeping and bearing” (broader), the People may have withheld from the Legislature broad authority to restrict possession.
• Doctrinal open question: What does “with a view to prevent crime” require—strict scrutiny-like tailoring or legislative deference? The concurrence flags the issue and analogizes competing approaches.

On this reading, a Chapter 7B order that categorically prohibits possession for life is difficult to reconcile with a constitution that, at least textually, authorizes only “regulat[ion]” of “wearing” arms to prevent crime.

3) Impact

A. Immediate procedural impact: courts must reach the merits when preserved

The remand resets the litigation: the court of appeals must address the Second Amendment and Texas Arms Clause challenges instead of disposing of them in a footnote on preservation. That has broader consequences for protective-order appeals in Texas, where firearm prohibitions are common and preservation disputes can become outcome-determinative.

B. Substantive impact: pressure on Chapter 7B firearm prohibitions

Although not a merits holding, the concurrence supplies a roadmap likely to be adopted or rebutted in future briefing:

• Federal: Expect litigants to argue that Chapter 7B must be limited to Rahimi-like conditions—dangerousness findings and limited duration—to fit Bruen’s historical-analogue requirement.
• State: Texas litigants may increasingly press “independent state grounds,” contending Article I, § 23 is more protective than the Second Amendment—especially as to possession (not merely “wearing”) and as to categorical lifetime bans.

C. Institutional impact: re-centering Texas constitutional law

The concurrence is a call for Austin, not Washington, to clarify gun-rights doctrine in Texas. If the Court later embraces even part of the concurrence’s framing, Texas could develop a distinct two-track analysis: federal Bruen/Rahimi plus a separate Article I, § 23 inquiry, potentially producing outcomes different from federal minimums.

D. Legislative and practice impact

If courts conclude Chapter 7B firearm prohibitions are unconstitutional in some applications, likely responses include:

• amending Chapter 7B to require express “credible threat/dangerousness” findings before firearm prohibitions;
• limiting firearm prohibitions to determinate terms with periodic review;
• building clearer record requirements in protective-order proceedings (evidence tied to physical violence risk, not solely harassment).

Complex Concepts Simplified

• GVR (“grant, vacate, and remand”): An appellate move that sets aside the lower court’s judgment and sends the case back for reconsideration—often in light of a new precedent or a recognized error (here, the mistaken conclusion that the constitutional claims were not preserved).
• Preservation/forfeiture: A party generally must raise an argument in the trial court to complain on appeal. The concurrence emphasizes Texas’s comparatively “generous” preservation rules and points to Noyes’s new-trial motion as sufficient.
• Text-history-and-tradition (the Bruen test): Once conduct is covered by the Second Amendment’s text, the government must justify the restriction by showing it matches (or is “relevantly similar” to) historical firearm regulations from the founding era tradition.
• As-applied vs. facial challenge: A facial challenge claims a law is invalid in all applications; an as-applied challenge targets a particular use of the law (here, lifetime disarmament based on Chapter 7B findings without an express “credible threat” determination).
• “Going armed” and surety laws: Historical regulations that restricted carrying weapons in a threatening manner (going armed to terrorize) or required a bond from someone reasonably suspected of posing a risk. The concurrence argues these analogues are typically (i) tied to dangerousness and (ii) temporary.
• Original public meaning: Interpreting constitutional text as it would have been understood when adopted. The concurrence uses this method to argue “wearing” is narrower than “bearing,” and thus legislative power under Article I, § 23 is narrow.

Conclusion

Justice Sullivan’s concurrence does not decide whether Chapter 7B’s lifetime firearm prohibition is unconstitutional. It does, however, (1) frames the remand as the beginning of overdue Texas engagement with both the Second Amendment and Article I, § 23; (2) offers a strong statutory reading that Chapter 7B authorizes life-duration orders notwithstanding Family Code § 85.025; and (3) previews a merits framework under which lifetime disarmament without a dangerousness finding may be difficult to justify under New York State Rifle & Pistol Ass'n v. Bruen and United States v. Rahimi, and perhaps even harder under a historically rooted, potentially “absolute” Texas Arms Clause.

If the court of appeals (and eventually the Supreme Court of Texas) takes up the concurrence’s invitations, Texas law may soon face a defining question: whether modern protective-order practice can impose categorical, lifetime firearm dispossession without the kind of threat-focused findings and temporal limits that federal history-and-tradition doctrine and Texas’s own constitutional text arguably demand.