Wednesday, July 10, 2013

What Did Arkansas Pass?

According to June 24, 2013 KNUE 101.5 FM:
Next month Arkansas will join Vermont, Alaska, Wyoming and Arizona as a “Constitutional Carry” state. That means that you don’t need a permit or license to carry weapons, either openly or concealed for lawful purposes.


Arkansas law will now consider people carrying guns the same way many state laws handle possession of any kind of hand tools, so-called “tools of burglary.” Normally, you can get away with carrying common hand tools anywhere you otherwise have a right to be. But if you are caught trying to use them in an attempt of breaking and entering or even trespassing, you can be charged with a crime based on obvious intent to use that tool in a crime. As long as you are not harming, or attempting to harm others with a weapon, then possession alone should not be a crime.
However, this article from the July 9, 2013 Arkansas Business indicates that the Arkansas Attorney-General says that open carry is not legal:
LITTLE ROCK - A state law that takes effect next month doesn't legalize the open carry of handguns despite the insistence of some gun rights advocates, Arkansas Attorney General Dustin McDaniel said in an advisory opinion to legislators Monday.

McDaniel said the measure signed into law that makes technical corrections regarding the possession of a handgun didn't remove the restrictions on carrying weapons openly. Arkansas law currently states that being on a journey is a defense to prosecution for illegally carrying a weapon, but doesn't define what constitutes a journey.

The new law defines a journey as traveling "beyond the county in which the person lives."
"A person does not fall within Act 746's 'journey' exception to the statutes relating to the possession and carrying of a handgun simply because the person has left the county in which he or she lives," the opinion said. "Stated differently, I do not interpret Act 746 as authorizing so-called 'open carry.'"
Arkansas law seems modeled on the old Texas statute in this respect, with the same vagueness.  The A-G's opinion would suggest that this new law is far less broad than Constitutional carry.

I don't have time right now to read the statute, and see what it actually does.

2 comments:

wfgodbold said...

I left this same comment over at SNBQ:

The AG opinion on Act 746 is very narrow. The Act clarified some terminology, including the definition of “journey,” and the AG opinion only deals with that new definition and how that new definition does not allow open carry.

The AG explicitly avoids the separate question of whether the change to the language defining the offense of carrying a weapon allows open carry (see footnote 7 in his opinion).

The offense now has a mens rea element; the person charged must be possessing a weapon “with a purpose to attempt to unlawfully employ” it. The previous language criminalized possessing a weapon “with a purpose to employ” it.

The state senator who asked for clarification of the law only asked about the journey provision, and so the AG didn’t give an opinion on the above changed language.

wfgodbold said...

Clayton, I've laid out how confusing the amended statute is here.

It's more complicated than I first thought; instead of the journey provision remaining a defense to carrying a weapon, it's now one of many enumerated permissible carry situations.

The intent element added to the statute makes this seem more like a law to be used as an add-on offense rather than a stand-alone offense. I imagine it will take a test case to sort this out, and I'm not going to volunteer.