AR:Constitutional Carry will be the Law in Arkansas

[Dean Weingarten]

On 4 April, 2013, Arkansas HB1700 became ACT 746. The revised law will not go into effect until late July or early August of this year.

The bill makes a definition change in the statute that has been interpreted to limit the legal carrying of weapons in Arkansas.

The original language was this:

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 employ the handgun, knife, or club as a weapon against a person.

The new language is this. Bold added to make the change stand out:

SECTION 2.

5-73-120.

Carrying a weapon.

(a) Arkansas Code § 5-73-120 is amended to read as follows: 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.

This change clarifies the meaning of the law to what was likely the original intent; that a person may not carry a weapon with the intent of using it for unlawful purposes. There does not appear to be other Arkansas law that forbids the carrying of weapons (except in certain named locations). Therefore it appears that Arkansas will have Constitutional carry.

The law also clarifies the meaning of "journey". The previous law made an exception for the carry of weapons during a journey. Journey is now clarified to mean travel that crosses a county boundary. Arkansas has many counties of roughly the same size , about 25 to 30 miles on a side. This means that a great deal of travel will fall into the legal category of a journey. In addition the law exempts carry on your own property or property that you have an interest in.

The law is available in PDF format Here

Map showing Arkansas Counties

There may be legal challanges before the law is accepted by all legal entities in Arkansas.

http://gunwatch.blogspot.com/2013/04/arconstitutional-carry-will-be-law-in.html

 

[BigBore44]

Dean,
Do you know if this law applies to persons (non residents) traveling through the state? I've been trying to ask my brother (Major city in Arkansas Police Officer) but can't get ahold of him yet... I often travel to or through the state to see him or for my other job.

 

[Dean Weingarten]

The law does not differentiate between resident and nonresident

There doesn't seem to be any difference in the way residents or non-residents are treated. Non-residents would by definition be on a journey, because they would have crossed a county line.

I would think non-residents would be doubly protected.

However, it always takes a while for peace officers and agencies to come up to speed on new law, so some caution would be advisable. Most people do not want to be test cases.

However, if you are willing to be a test case, be prepared. Have a recording device. Have a copy of the law. Have an attorney that you can contact.

 

[BigBore44]

Thanks Dean,
I got ahold of my brother and we both read the entire bill. We came to the same conclusion.

 

[Kiln]

Any confirmation of this? I'm an Arkansas resident and have been wanting to get my concealed carry license but have been too broke.

I would love it if this turned out to be true.

Just to be clear, constitutional carry is where it is made legal to carry a weapon concealed without a permit so long as you don't intend to use it for illegal purposes right?

 

[BigBore44]

Kiln,
It's true. I got an email from my brother that he got as a forward to every officer from their CO's. It listed every bill that was up for a vote that had been passed. And a PDF of the full bill with the amendments. If you want me to copy paste the whole bill I will. But it might not be in PDF format.

 

[Kiln]

From what I understand, the bill will only make it legal to carry concealed or openly when you are OUTSIDE of your home county. Kind of makes it pointless to me in that case.

 

[BigBore44]

http://www.arkleg.state.ar.us/assembly/2013/2013R/Bills/HB1700.pdf

 

[Kiln]

http://www.arkleg.state.ar.us/assembly/2013/2013R/Bills/HB1700.pdf

Right, I read that but since a journey has now been defined as going beyond the county in which you live, you won't be able to legally carry without a permit inside of your home county.

"(7) The person is on a journey beyond the county in which the person lives"

 

[Dean Weingarten]

Constitutional carry is when you do not need a permit to carry a weapon legally, either openly or concealed.

The change in the law appears to do that. The "journey" exception seems to be in addition to the change in the law definition. It appears to be double protection.

The journey exception would apply as soon as you start the journey, I would think. You would just have to show that you intended to cross a county line. The map at the link shows that Arkansas counties are not real large.

It appears that a prosecutor will have to show that you were carrying the weapon for illegal purposes in order to prosecute under this law.

 

[BigBore44]

It's really quite simple. Small counties mean less travel to get through said county. All you would have to say is you were going somewhere that's in another county. They can't prove you WEREN'T on a "journey" by your definition.

Also....
(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.

So you carrying is not attempting to unlawfully use that weapon against another person.

 

[Bobson]

Section 1 (E), where this bill begins, is addressing proposed changes to the defense clauses of the law. Nothing in this section grants all lawful possessors the right to unlicensed carry. It does give you the right to carry while you travel outside your home county, presumably for people who travel regularly for a living. It's true that they might have a hard time proving you aren't on a journey, but that's not the point. We aren't discussing how to get away with breaking the law, we're discussing what is and what is not lawful.

The major change in Section 2 (A) seems to do nothing more than add a more broad action for committing the crime. As it was originally written, it stated:

"A person commits the offense of carrying a weapon if he or she possesses a handgun, knife, or club: 1) on or about his or her person, or 2) in a vehicle occupied by him or her, or 3) otherwise readily available for use with a purpose to employ the handgun, knife, or club as a weapon against a person."

Now, the scope of the third method of breaking the law has been expanded, to allow for even the attempt to unlawfully employ the handgun, knife, or club as a weapon.

Section 2 (B) simply defines terms used throughout Section 2.

Now look at Section 2 (C). This section says, yes, you can carry a firearm in accordance with Section 1 [presumably Section 1 (A-D)], as long as you don't violate Section 2 (A), and you meet a requirement outlined in Section 2 (C). Look at Section 2 (C), numbers 8 and 9. Those aren't listed in Section 1 (E). They're different requirements, and they both allow for a license to carry.

In sum, the way I read it, it seems like this bill is about expanding opportunities to prosecute criminals (Section 2, A), and clarify the guidelines for lawful carry of a firearm (Section 2, C). They also added the journey bit, which does give you lawful right to carry outside your home county. Nothing more here, and unfortunately, this doesn't grant Constitutional Carry.

 

[Bobson]

To make it more clear, the only way Section 2 (A) could be interpreted to state what BigBore44 is saying, is if there was a comma added between the words "use" and "with" in line 33 of the bill.

A comma there would effectively change the meaning of that section to give three parameters for unlawful carry only if the person had "a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person." That would essentially define constitutional carry, except there's no comma there. Also, all of Section 2 (C) would be meaningless if Constitutional Carry were being implemented, because Section 2 (C) is nothing more than a list of specific guidelines for lawful carry.

Without that comma, we simply have three separate descriptions of unlawful acts, which are as follows:
1) Possession of a handgun, knife, or club on or about his or her person, or
2) Possession of a handgun, knife, or club in a vehicle occupied by him or her, or
3) Possession of a handgun, knife, or club otherwise readily available for use with a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.

Section 2 (C) provides exceptions to all three if you meet a requirement outlined between (C) 1-9. Exceptions to the first two are implicit, and the exception to number 3 is a logical inference. For example, under 2 (C) 2, it's inferred that an LEO, Correctional Officer, etc, who is carrying due to the scope of his duties, is clearly not carrying because he intends to do unlawful harm to anyone.

I'm looking forward to seeing what Mr. Ettin has to say about all this. I'm not in law school yet.

 

[BigBore44]

Yes Frank, please weigh in. And I will get a direct answer from the DA in Washington County also. Surely we can get the correct answer between those two.

 

[Kiln]

Section 1 (E), where this bill begins, is addressing proposed changes to the defense clauses of the law. Nothing in this section grants all lawful possessors the right to unlicensed carry. It does give you the right to carry while you travel outside your home county, presumably for people who travel regularly for a living. It's true that they might have a hard time proving you aren't on a journey, but that's not the point. We aren't discussing how to get away with breaking the law, we're discussing what is and what is not lawful.

The major change in Section 2 (A) seems to do nothing more than add a more broad action for committing the crime. As it was originally written, it stated:

"A person commits the offense of carrying a weapon if he or she possesses a handgun, knife, or club: 1) on or about his or her person, or 2) in a vehicle occupied by him or her, or 3) otherwise readily available for use with a purpose to employ the handgun, knife, or club as a weapon against a person."

Now, the scope of the third method of breaking the law has been expanded, to allow for even the attempt to unlawfully employ the handgun, knife, or club as a weapon.

Section 2 (B) simply defines terms used throughout Section 2.

Now look at Section 2 (C). This section says, yes, you can carry a firearm in accordance with Section 1 [presumably Section 1 (A-D)], as long as you don't violate Section 2 (A), and you meet a requirement outlined in Section 2 (C). Look at Section 2 (C), numbers 8 and 9. Those aren't listed in Section 1 (E). They're different requirements, and they both allow for a license to carry.

In sum, the way I read it, it seems like this bill is about expanding opportunities to prosecute criminals (Section 2, A), and clarify the guidelines for lawful carry of a firearm (Section 2, C). They also added the journey bit, which does give you lawful right to carry outside your home county. Nothing more here, and unfortunately, this doesn't grant Constitutional Carry.

That's how I read it too.

 

[Dean Weingarten]

Your interpretation does not make any sense to me, because the third clause then becomes redundant and unnecessary. It makes perfect sense if the three ways of possessing :

1. on or about his or her person,

2. of a handgun, knife, or club in a vehicle occupied by him or her,

3. or otherwise readily available for use

all apply to the purpose of the carrying, which is for unlawful use against another person.

 

[taliv]

very good news. i'm always on a journey in AR though.

 

[razorback2003]

It is my understanding that carry of a weapon is legal without a license as long as you not intend to UNLAWFULLY use the weapon against a person.


It is also my understanding that in addition it is ALSO legal to carry a handgun:
1. with a license
2. on a journey outside your home county
3. going to and from hunting with an AGFC approved handgun

 

[r1derbike]

Existing case law questions, ambiguous wording? I'm not convinced this is constitutional carry material.

In the mean time, it doesn't go into effect until July, so maybe clarification and challenges will have painted it into a corner that may explicitly define its meaning, or castration.

All I'm seeing is clarity defining "journey" and "criminal intent".

I'm not reading anything more into this until we have legal precedent.

Especially with the scope and meaning of how the word "carry" is legally defined; as on person in vehicle, or anywhere in vehicle, or limited to vehicle while on a journey, or concealed carry outside the vehicle in public (we have no open carry here in AR).

Even if concealed carry outside your vehicle were legal, you would still need a CHCL to carry concealed in your home county, as was noted before. Alarm bell.

There are just too many loose ends to assume constitutional carry, ATM.

 

[Sambo82]

It does indeed look like Constitutional Carry, and it's starting to cause a fuss within governmental and legislative circles here in Arkansas. The journey clause, while a nice clarification and a double protection of sorts, isn't really the significant clause here. Now thanks to the Section 2 (A) change unless a prosecutor can prove a person had intent to use a firearm unlawfully, there's no crime in simple possessing a firearm. The law doesn't specify open or concealed, on your person or in a vehicle.

While it does seem too good to be true, there is now no law specifically criminalizing carrying a firearm in Arkansas.

The folks at Arkansas Carry have been calling various prosecuting attorneys and Dustin McDaniel the State AG to get an opinion, but for now no one has issued a statement. Very exciting and interesting to say the least.

Here's some links for further reading

http://www.thearkansasproject.com/constitutional-carry-governors-impression-or-legislative-intent/

http://arkansasmatters.com/fulltext?nxd_id=657152

http://www.arkansascarry.com/media/kunena/attachments/556/IntentofAct746.pdf

 

[r1derbike]

Thanks for the links, Sambo82. It is going to be an interesting ride, until July.

I read the act to amend the bill, and I didn't get any sense it had anything to do with constitutional carry. It does what it says; clarifies the meaning of journey, and clarifies criminal intent, protecting possession.

Governor Beebe said he would veto any open carry legislation crossing his desk, and I just don't see the leap to open carry for this act.

 

[Kiln]

I just wonder if we won't see new laws to preempt this thing before it becomes reality.

 

[Sambo82]

Thanks for the links, Sambo82. It is going to be an interesting ride, until July.

Yessir. Interesting indeed.

I just wonder if we won't see new laws to preempt this thing before it becomes reality.

I'm so jaded it wouldn't suprise me. But with the Republican controlled legislature for the first time since Reconstruction, I think it might be here to stay. It's no coincidence that all these pro gun bills have been introduced this session.

 

[Spats McGee]

I've read the bill. While it's not entirely clear to me that it's really "constitutional carry," it's certainly causing a hubbub. Prior to the change, a "journey" was only defined by a 1987 case called Riggins, which called a "journey" something like "traveling outside one's usual acquaintances and routines" (or some similar language).

It's not clear what this will mean for folks traveling inside their own counties, but it certainly looks like one will be able to carry without any sort of permit outside the county. The discussions that I've read indicate that it was intended to allow vehicle carry, but I see no such limitation in the act itself. We'll have to see what happens to it when it goes through the codification process. I've seen a couple of statutes changed during that process, so please be cautious until it's finished that step.

Also, the additional language in the Carrying A Weapon statute is a welcome clarification. The old language of "with the purpose to use [a weapon] against a person" made no distinction between an offensive gun use and a defensive one use.

 

[razorback2003]

Spats, do you think it is still legal for folks with a CHL to carry on school property as long as they do not enter the school buildings? The good thing is I will be on a journey anytime in Arkansas so I would be legal on school property either way but when I lived in Arkansas supposedly as long as I did not enter a school building, I was legal.