How to Interpret Gun Statutes in Arkansas

There are some people that argue that the wording in the Arkansas Carrying a Weapon statute (5-73-120) is “confusing” or ambiguous, I have done an in depth analysis of that statute here: http://www.arkansaslawking.com/2013/10/does-arkansas-law-now-allow-for-open-carry-of-a-firearm-analysis-of-act-746/

If you haven’t read that analysis, I suggest you do so now.

The language used in that statute is clear and unambiguous, in order to be convicted the state must prove that you were carrying a handgun with the purpose to attempt to employ the handgun unlawfully against a person.  None of those words or their combination can be construed to mean anything other than what they plainly say.

Rule 1: If the statute makes sense, you do not need to “interpret” it.

The basic rule of statutory construction is to give the statute the effect the legislature intended. See State v. Havens, 337 Ark. 161, 164, 987 S.W.2d 686, 688 (1999).  Now, that could be twisted to mean something it does not, so the case clarifies that statement by saying “If the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation.” The courts have ruled time and time again, that the intent of the legislature is construed by reading the statute. See Rush v. State, 324 Ark. 147, 151, 919 S.W.2d 933, 934-35 (1996)

Rule 2: Statutes Regulating Fundamental Rights and Criminal Statutes Must Be Strictly Construed

Because the right to bear arms is viewed as fundamental and should not be abridged, statutes regulating that right are strictly construed. This has been the law in Arkansas since at least 1885. See Davis v. State, 45 Ark. 360, 361 (1885).

In addition to the 2nd Amendment to the U.S. Constitution, Arkansas has also recognized the right to bear arms as a fundamental right in our own Constitution. See: Ark. Const. art. II, § 5.

Strict construction basically means that you take the words and sentence structure at face value, without adding commentary or inferring meaning.

A statute subject to strict construction is one in which the court feels obligated to apply it as written, absent an expressed intent to the contrary. This approach has two consequences. First, it disallows the use of inference (but perhaps not common sense). Second, the expression of intent must be clear and, almost necessarily, be found within the statute itself.

The court often adds that strict construction means to apply the “plain meaning” of the statute. Subject to two exceptions, statutes are always read by giving each word its ordinary meaning, absent a clear intent to use a legal or other specialized meaning. On top of the rule that statutes must be strictly construed if they are criminal in nature, also “public offenses unknown at the common law” must also be strictly construed. See: State v. Gallagher, 101 Ark. 593, 143 S.W. 98, 38 L.R.A.N.S. 328 (1912) (practicing medicine without a license).

If a statute is narrowly construed, it’s plain meaning will control the application of the statute to the specific circumstances of the case.

See: Vergara Soto v. State, 77 Ark. App. 280, 74 S.W.3d 683 (2002); Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002);

Rule 3: Any Doubts Must be Resolved in Favor of the Defendant

When construing a criminal statute, the court follows the rule of lenity, meaning that all penal statutes be construed to reach the most lenient interpretation from the defendant’s standpoint. See: U.S. v. Jackson, 64 F.3d 1213 (8th Cir., 1995), Colburn v. State, 352 Ark. 127, 98 S.W.3d 808 (2003), Boveia v. State, 94 Ark. App. 252, 228 S.W.3d 550 (2006).

So if a criminal statute is somehow confusing or ambiguous, that is not good for people who claim that the statute makes something illegal. If the open/concealed carry statute is confusing or ambiguous, that actually makes it more likely that the courts will decide it is legal to open or concealed carry a firearm without a permit.

Rule 4: The Interpretation Cannot Lead to an Absurd Result

This court will not interpret a statute, even a criminal one, so strictly as to reach an absurd conclusion that is contrary to legislative intent.  See: Mings v. State, 316 Ark. 650, 873 S.W.2d 559 (1994); Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993) and Jackson v. State, 336 Ark. 530, 533–34, 986 S.W.2d 405, 407 (1999).

Some have been arguing that because Arkansas still has a concealed handgun licensing scheme, the idea that legally carrying a handgun concealed without a license would be an absurd result. However, eleven out of twelve states that allow for you to carry a weapon concealed without a license issue concealed carry licenses. The law is a list of things you cannot do, not a list of things you can do.

States that allow concealed carry without a license yet still isssue concealed carry licenses:

  1. Alaska Stat. § 11.61.220(a).
  2. Arizona Rev. Stat. § 13-3102. Enacted in 2010.
  3. Idaho Code § 18-3302 as amended by 2016 ID S 1389. Enacted in 2016.
  4. Kansas. Stat. Ann. § 21-6302(4). Enacted in 2015.
  5. Maine. Stat., 25 § 2001-A. Enacted in 2015.
  6. 2016 Mississippi. H.B. 786, signed by the Governor April 15, 2016, amending Miss Code Ann. § 97-37-7(24).
  7. 2016 Missouri. S.B. 656, Governor’s veto overridden Sept 14, 2016, amending Mo. Rev. Stat. §§ 571.030.
  8. 2017 New Hampshire SB 12, enacted and immediately effective on Feb. 22, 2017. ⤴︎
  9. North Dakota. Cent. Code §§ 62.1-02-04 – 62.1-02-05, 62.1-04-01 – 62.1-04-05; 2017 ND HB 1169, enacted Mar. 23 and effective on Aug. 1, 2017
  10. West Virginia. Code § 61-7-3, effective May 24, 2016. Enacted in 2016.
  11. Wyoming. Stat. Ann. § 6-8-104. Enacted in 2011.

The exception is Vermont does not issue concealed carry permits, and never has. People are allowed to carry open or concealed without a license. See: Vermont Stat. Ann. tit. 13, §§ 4004, 4016. and http://www.guncite.com/court/state/55a610.html

Rule 5: If the Statute is Ambiguous Give Executive Branch Interpretations Highly Persuasive Authority

If the statute is not ambiguous, the court will give effect to its plain meaning, notwithstanding a pre-existing interpretation to the contrary by an administrative agency (like the Arkansas State Police or the Attorney General’s office in the case of the carrying a weapon statute, the AG’s opinion disagrees with mine, and is wrong in my opinion, read it here: https://www.arkansasag.gov/assets/opinions/2015-064.pdf ).

However the courts will not adopt an executive branch interpretation that it finds clearly wrong based upon its own analysis.

See: (Yamaha Motor Corp. U.S.A. v. Richard’s Honda Yamaha, 344 Ark. 44, 52, 38 S.W.3d 356, 360 (2001)). Omega Tube & Conduit Corp. v. Maples, 312 Ark. 489, 850 S.W.2d 317 (1993)). See also, Teasley v. Hermann Companies, Inc. ___ S.W.3d ___, 2005 WL 1463425 (Ark. App., June 22 2005)(“We will not substitute our judgment for that of an administrative agency unless the decision of the agency is arbitrary, capricious, or characterized by an abuse of discretion.” (citing: American Standard Travelers Indem. Co. v. Post, 78 Ark. App. 79, 77 S.W.3d 554 (2002))).

Rule 6: If the Statute is Ambiguous, Look to the Caption, Title, Preamble or Emergency Clause and the Legislative History

Sometimes, the legislature will actually put their intent into the bill, if they do, look to that. There is no “legislative intent” in the Carrying a Weapon Statute. However, it is clear from the record that the bill was titled “technical corrections to the carrying a weapon statute,” and there was no real commentary or debate on record for the bill, other than introducing it and voting on it.

See:

http://media.law.uark.edu/arklawnotes/2014/02/13/open-carry-in-arkansas-an-ambiguous-statute/

However, statements or testimony offered by all or one of the members of the legislature will not be considered. So all those representatives and senators that told the media “we didn’t know what we were voting on, ” you’re statements don’t count.

“We have stated numerous times that courts may look to legislative journals and public documents where there is ambiguity, in order to find the intention of the legislature. . . . But this court has never held that a senator or representative may testify giving his or her opinion on the subject; in fact, [we have] made it very clear that extraneous aids were not admissible when they merely encompassed individual views regarding legislative intent. . . . “[I]n ascertaining the meaning of a statute the court will not be governed or influenced by the views or opinions of any or all of the members of the legislature, or its legislative committees or any other person.

See: Southwest Arkansas Communications, Inc. v. Arrington, 296 Ark. 141, 146, 753 S.W.2d 267, 269 (1988)(Glaze, J., concurring) (citing and quoting from Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 1025 88 S.W.2d 1007, 1009 (1935)). See also Carr v. Young, 231 Ark. 641, 645, 331 S.W.2d 701, 704 (1960)(rev’d on other grounds, Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L. Ed. 2d 231 (1960))(testimony of Attorney General whose office helped draft the legislation and the sponsoring Senator was inadmissible on issue of legislative intent); Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S.W.2d 1007 (1935); Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656, 659 (1912)(speaking of statements by advocates and opponents of a constitutional amendment during the political campaign which preceded its adoption the court said: “[h]owever persuasive those opinions may be, on account of the learning and distinguished ability of many of the men who expressed them, they are entitled only to the same consideration as if expressed now. The fact that they were expressed as arguments during the campaign adds no force to them as aids in interpreting the meaning of the language used in the amendment.”); and State v. Lancashire Fire Ins. Co., 66 Ark. 466, 45 L.R.A. 348, 51 S.W. 633 (1899).

See: http://ualrpublicradio.org/post/open-carry-legal-arkansas-depends-who-you-ask

Rule 7: Give Effect to Every Word in the Statute

Every word has to be given meaning and purpose, so by adding the word “unlawfully” the statute must have changed. So I ask my detractors, how did the carrying a weapon statute change based on adding the word unlawfully? I think the answer is clear.

There are lots of other rules, however I do not believe they are relevant to interpreting the Carrying a Weapon Statute or most gun laws in Arkansas.

It is possible that the courts could disagree with me and rule that this is an absurd result or against legislative intent in some other way, however if they did so they I don’t think they would be following precedent.

I basically plagiarized most of my research on statutory interpretation in this article from:

John Thomas Shepherd, Who Is the Arkansas Traveler?: Analyzing Arkansas’s “Journey” Exception to the Offense of Carrying A Weapon, 66 Ark. L. Rev. 463 (2013).

&

http://media.law.uark.edu/arklawnotes/files/2011/03/Mullane-Statutory-Interpretation-in-Arkansas-Arkansas-Law-Notes-2005.pdf

For a list of where you can carry a firearm without a license in Arkansas, see: http://www.arkansaslawking.com/where-can-you-carry-a-gun-in-arkansas/

If you have been arrested for a gun crime in Arkansas, give our criminal defense lawyers a call at 479-782-1125.

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