AAC
LEGAL CORNER
To open carry or not to open carry? That may no longer be the question
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he question of whether open carry is the law in person. In fact a true open carry bill Arkansas has been at issue for some time, but re- that had been filed was withdrawn by cent statements from constitutional officers seem to its sponsor shortly after the passage signal a turn towards its legality, as opposed to the of Act 746. However, the bill’s sponprevious administration. An attempt by the General Assembly sor and those who supported the bill in 2013 to make “technical corrections” to clarify when a person (28 Senators and 82 Representatives, LINDSEY BAILEY may openly carry a handgun “on a journey” did anything but with no votes cast) denied that Act General Counsel simplify the status of open carry in Arkansas. 746 was a backdoor attempt to allow Act 746 of 2013, sponsored by then-Rep. Denny Altes, and unfettered open carry in Arkansas. picking up numerous co-sponsors, was introduced as House Bill Then-Sen. Eddie Joe Williams re1700, “An Act Making Technical Corrections Concerning the quested an Attorney General Opinion to opine on whether “Act Possession of a Handgun and Other Weapons in Certain Places; 746 now permits a person to be able to carry a handgun, in plain and for Other Purposes.” Previously, the statute to be amended view or concealed, if they leave their county” so long as they do listed several defenses to prosecution for unlawfully carrying a not visit a prohibited location. Attorney General at the time, firearm, including when Dustin McDaniel, opined “The person is on a jourthat a person does not fall he question of whether open carry is the law ney” and at least 18 years within Act 746’s “journey” old. Members of the Gendefense to unlawfully carin Arkansas has been at issue for some time, rying a firearm “simply eral Assembly understandably viewed the “jourbecause the person has left but recent statements from constitutional officers ney” label as ambiguous the county in which he or and sought to clarify that lives.” He went on to seem to signal a turn towards its legality, as opposed she language. Undefined by explicitly state, “I do not statute, Attorney General interpret Act 746 as auto the previous administration. Opinion 2011-092 dethorizing so-called ‘open fined “journey” as a heavily carry.’ To the contrary, fact-dependent factor, but the journey exception apotherwise being “a distance from home sufficient to carry him plies only to ‘travel beyond the county in which a person lives’ beyond the circle of his neighbors and general acquaintances and — a narrow range of activity inconsistent with the concept of outside the routine of his daily business.” The courts had dif- [true, unfettered] ‘open carry.’” Therefore, post-Attorney Genficulties defining “journey” as well for this purpose. Act 746 was eral Opinion 2013-047, the consensus among most was that one an attempt to clarify this definition by defining a “journey” as could not open carry in Arkansas absent being on a journey outtraveling “beyond the county in which the person lives.” This, side of one’s county of residence. as a technical correction, or clarification, seemed simple enough. At least one court seemed to affirm that opinion when, in However, the act arguably appeared to go beyond mere tech- 2014, a man was arrested for and charged with, among other nical corrections or clarification with another change. Prior to things, unlawfully openly carrying a weapon in a White County Act 746, Ark. Code § 5-73-120 defined the offense of unlaw- Walmart store, resulting in a revocation of his concealed carry fully carrying a weapon as when a person possessed “a handgun, permit. Circuit Court Judge Wendell Griffen rejected as “senseknife, or club on or about his or her person” in a vehicle occupied less” the man’s argument that his permit should be restored beby the person “or otherwise readily available for use with a pur- cause open carry was now permitted so long as no unlawful inpose to employ the handgun, knife, or club as a weapon against tent was present to employ the weapon against a person. The case a person.” Section 2 of Act 746 added two short, but important was not appealed to a higher court. phrases: “... with a purpose to attempt to unlawfully employ the However, that consensus began to break down in 2015, when handgun, knife, or club as a weapon against a person.” Open newly elected Attorney General Leslie Rutledge began to publicly carry advocates began to tout the act as a victory, saying that the declare that, while she acknowledged legitimate confusion about Section 2 changes created a mens rea or intent requirement to the law, she personally believed true open carry was legal in Arcommit the offense of unlawfully carrying a firearm — that one must have the intent to unlawfully employ the weapon against a See “CARRY” on Page 18 > > >
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COUNTY LINES, WINTER 2018
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