Have the Circumstances Under Which an Individual May Openly Carry a Firearm Been Expanded in Arkansas? (Analysis of Act 746)

Warning: I am fearful that the politics of this heated topic will trump the true interpretation of this law. Governor Beebe, the Arkansas State Police, and many County Sheriffs have stated contrary positions to my interpretation.  They are wrong; however, I would not suggest open carry at this time as you would run a substantial risk of arrest and conviction. 

Disclaimer: The following text is not legal advice and is for educational purposes only. Speak with an attorney about how these statutes should be interpreted.

Short Answer: Yes, but the real expansions have taken place under Section 2 of Act 746, not Section 1 where the changes to the journey clause were made. Although the journey clause might have been changed in a way that will effect minor positive changes and protections to open carry and concealed carry without a license, it pales in comparison to the changes in Section 2.

General Rules of Statutory Interpretation

A lot of people have been trying to determine what the legislative or even gubernatorial intent was behind Act 746. Legislative intent is derived after a plain reading analysis. If after that analysis the meaning is unclear, we can look to the personal intentions of the legislators, but only after we have exhausted other methods of interpretation. Gubernatorial intent does not exist as a method of statutory interpretation. Parts of the statute are crystal clear, while other parts allow for such ridiculous conclusions that they will not withstand interpretation using a plain-reading analysis. The right to bear arms is a fundamental right and should therefore not be abridged. Statutes regulating the right to bear arms are strictly construed. Furthermore, criminal statutes must be interpreted in the light most favorable to the defendant. Please keep that in mind as you read further.

Section 2 of Act 746

Section 2 of Act 746 amends 5-73-120 which prohibits “Carrying a weapon” (a specifically defined phrase):

“(a) A person commits the offense of carrying a weapon if he or she possesses a handgun, knife, or club on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use with a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.”

Analysis:

To be convicted under this statute the prosecutor must prove each element beyond a reasonable doubt. This means that the Defendant:

(1) possessed a handgun (or other weapon in the statute)

(2) with a purpose to

(3) attempt to

(4) unlawfully

(5) employ the handgun

(6) against a person

If one of those elements is not met, then you cannot be convicted of “carrying a weapon.” For example, if your purpose is to lawfully employ the handgun against someone in self-defense, you can’t be convicted. If you plan to use the gun against an animal, then you can’t be convicted. If you possess the gun without a purpose to do anything with it, then you can’t be convicted. However, keep in mind that your purpose can be inferred from the circumstances. Also, remember not to take the gun into any prohibited places listed here.

The prohibition on “carrying a weapon” has a few exceptions relevant to this discussion:

“It is permissible to carry a handgun under this section that if at the time of the act of carrying a weapon:

……

(4) The person is carrying a weapon when upon a journey, unless the journey is through a commercial airport when presenting at the security checkpoint in the airport or is in the person’s checked baggage and is not a lawfully declared weapon;

[implied “or”]

…………….

(8) The person is in possession of a concealed handgun and has a valid license to carry a concealed handgun under § 5-73-301 et seq., or recognized under § 5-5 73-321 and is not in a prohibited place as defined by § 5-73-306;”

Exception (4) analysis

This exception is strange because it allows “carrying a weapon” while on a journey, when the language just above it defines “carrying a weapon” as a crime. It sounds weird, but by a plain reading this exception seems to allow you to possess a weapon with the intent to use it unlawfully against another person. I think the legislature made a huge mistake here, and I doubt a judge would accept this plain reading interpretation.

That aside, exception (4) allows you to carry a handgun while you’re on a journey outside your own county and there are not any requirements that the gun be concealed. A question arises though: What does “on a journey” mean? And when does your journey end?

Exception (8) analysis

This exception allows you to possess a concealed handgun with a valid carry permit (why did they use different language than in 4? Maybe you really are exempted from a crime in 4). To apply, this exception requires that the gun beconcealed. So, if you have a concealed carry permit and want to rely on this exception, the gun must be concealed. But again, this is an exception to the crime of “carrying a weapon” and does not make sense because the crime of “carrying a weapon” requires that you have the purpose to attempt to use the gun unlawfully against a person —  and why would the legislature want to allow that?

Conclusion: This statute provides some protection to those wanting to open carry or concealed carry without a license: (1) it only prohibits possessing (outside of the prohibited places) a handgun when you have a purpose to attempt to unlawfully employ the handgun against a person and (2) there are exceptions to this crime like being on a journey or having a concealed carry license.

While this statute seems provide authority for someone who wants to open carry or concealed carry without a license, I am not sure how the courts will interpret it. Like my warning stated, politics often trump integrity. Open Carry has been acknowledged by the governor as of 2017, but they are still claiming concealed carry without a license is illegal.

Note: The preceding text is not legal advice and is for educational purposes only. Speak with an attorney about how these statutes should be interpreted.

-Co-authored by Aaron S. Cash and W. Whitfield Hyman (pictured below).

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