AR:Constitutional Carry will be the Law in Arkansas

[Dean Weingarten]

In the USA, the default position is that it is legal to do things unless they are forbidden by law. If it is not forbidden by law, it is legal.

With the change to the law, no one has put forward any place in the law where it says it is unlawful to carry a weapon, except for certain specific places, at least that I can see.

Constitutional carry (open or concealed carry without a permit) is the default position, unless they are specifically forbiden by law.

 

[Spats McGee]

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.

Actually I don't actually think that ever was legal. Overlooked and accepted, maybe, but not legal. Ark. Code Ann. 5-73-119, prior to Act 746, read as follows:

(b)(1) No person in this state shall possess a firearm:

(A) Upon the developed property of a public or private school, K-12;

(B) In or upon any school bus; or

(C) At a designated bus stop as identified on the route list published by a school district each year.

(2)(A) A violation of subdivision (b)(1) of this section is a Class D felony.

(B) No sentence imposed for a violation of subdivision (b)(1) of this section shall be suspended or probated or treated as a first offense under § 16-93-301 et seq.

Ark. Code Ann. § 5-73-119 (West)

Turning to the defenses to the above section:

(e) It is a defense to prosecution under this section that at the time of the act of possessing a handgun or firearm:

(1) The person is in his or her own dwelling or place of business or on property in which he or she has a possessory or proprietary interest, except upon the property of a public or private institution of higher learning;

(2) The person is a law enforcement officer, correctional officer, or member of the armed forces acting in the course and scope of his or her official duties;

(3) The person is assisting a law enforcement officer, correctional officer, or member of the armed forces acting in the course and scope of his or her official duties pursuant to the direction or request of the law enforcement officer, correctional officer, or member of the armed forces;

(4) The person is a licensed security guard acting in the course and scope of his or her duties;

(5) The person is hunting game with a handgun or firearm that may be hunted with a handgun or firearm under the rules and regulations of the Arkansas State Game and Fish Commission or is en route to or from a hunting area for the purpose of hunting game with a handgun or firearm;

(6) The person is a certified law enforcement officer;

(7) The person is on a journey, unless the person is eighteen (18) years of age or less;

(8) The person is participating in a certified hunting safety course sponsored by the commission or a firearm safety course recognized and approved by the commission or by a state or national nonprofit organization qualified and experienced in firearm safety;

(9) The person is participating in a school-approved educational course or sporting activity involving the use of firearms; or

(10) The person is a minor engaged in lawful marksmanship competition or practice or other lawful recreational shooting under the supervision of his or her parent, legal guardian, or other person twenty-one (21) years of age or older standing in loco parentis or is traveling to or from this activity with an unloaded handgun or firearm accompanied by his or her parent, legal guardian, or other person twenty-one (21) years of age or older standing in loco parentis.

Ark. Code Ann. § 5-73-119 (West)

There's no exemption for CHCL holders that I can see, and I see nothing in the new Act 746 that says it's permissible to CC on school grounds with a CHCL, either.

 

[razorback2003]

That is something that really needs to be fixed by the legislature. I can't believe with all this pro gun legislation, that nobody got that school issue fixed.

What do you think about Beebe's 2003 AG opinion that said those with a CHL were bound by the more narrow restriction of the 'prohibited places' that just mention school buildings but not the whole property?

http://ag.arkansas.gov/opinions/docs/2003-372.html

 

[Outlaw Man]

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

Too late. The General Assembly has ended its session. If I understand correctly, this law cannot be changed until 2015.

I spoke to a prosecuting attorney about this. Granted, he doesn't handle these types of cases, and he's pro-gun, so he may be a little biased, but he reads it as Constitutional Carry, as well. Still, until there is an AG opinion to that effect or there is a test case I'm not willing to volunteer for, I'm going to stick to CHCL rules.

This law will go into effect on July 22, by my quick calculations.

 

[Spats McGee]

What do you think about Beebe's 2003 AG opinion that said those with a CHL were bound by the more narrow restriction of the 'prohibited places' that just mention school buildings but not the whole property?

I think I need to take a closer look at the statute, as it stood before and as it now stands, and then read the AG opinion in light of the new amendment.

 

[r1derbike]

If this act remains unscathed until it hits the streets in July, and is deemed constitutional carry by our judicial and legislative bodies (it will be challenged in court, and neutered with more specific language, I believe), we need to find pro 2A lawyers who would represent those unfortunate enough to be caught in the crossfire.

Tail wagging the dog at this point, I know, but it would be nice to know, just in case.

I respect the views of those who deem this a constitutional carry act, but cannot see the leap to that conclusion, as I read and understand the act presently.

Time will tell. Perhaps if constitutional carry is prohibited in a future rewrite, we may work with law enforcement and legislature to morph the act into more than what it is, after it's neutered. Open carry would be nice, although the governor said he would veto that bill. Carry onto property, but not into prohibited buildings would be nice (parking lots). Just thinking ahead to what we may suggest to the act's author, and work with authorities to get mutually beneficial changes.

We have many new pro 2A carry laws recently passed, there is no reason to slow down that momentum.

 

[Outlaw Man]

Fortunately, if/when this comes up again we should have a different governor. Hopefully, he'll be a little more favorable.

We've definitely had some substantial improvements this session! I had hopes, considering the make-up of the legislature, but I really didn't think we'd make it this far. They have a history of being very slow to change.

 

[airman59]

arkansas act 746

Kiln, I think your idea of only act 746 is applied only when your out of your home county is not correct as your journey starts has to from your home as and intent to crossing to another county and ends when you returns to home. A do not think your journey does starts and ends just crossing a county line. JMO but am not a lawyer.

 

[Spats McGee]

Arkansas Attorney General Dustin McDaniel has issued an opinion on whether Act 746 means that we have constitutional carry. In short, he does not believe that it does.

 

[Sambo82]

Dustin McDaniel is just another anti gun lawyer creating ambiguity where there is none, and I really hope he's voted out come election time. For example from the letter;

"Left unclear, however, is what is meant by 'travel beyond the county in which the person lives.'"

I don't even know how to respond to that. What a load of crock. But ultimately, his entire letter was pertaining to the "Journey" clause rewrite, and didn't even mention the 5-73-120 (a) rewrite which now assures that to be convicted of "carrying a weapon", a prosecutor has to show that a person intended to employ a weapon unlawfully. That single sentence makes Arkansas a defacto Constitutional Carry state.

Also from McDaniel's letter;

"When the language is ambiguous, the courts apply rules of statutory construction and will also look to the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject"

Well that's good, considering that the bill's chief author and sponsor, Representative Denny Altes, has come out and said numerous times since it's passing that the intent was to create Constitutional Carry.

Ultimately though, unless every single LEO and prosecutor in the State gets on board, it's going to have to go to trial. I don't have a CCW permit because the fees are prohibitive at my income level, but you can bet your beehive that with this law I'll be carrying. And I'll gladly be a test case if necessary. Arkansas gunowners and carriers are some of the most generous people anywhere and I'm absolutely positive that the test case will be awash with donated funds for the defense. If that case wins, we'll be the fifth state with official Constitutional Carry. If it's lost the defendant gets a class A misdemeanor. I'll take those odds.

 

[baz]

Ultimately though, unless every single LEO and prosecutor in the State gets on board, it's going to have to go to trial. I don't have a CCW permit because the fees are prohibitive at my income level, but you can bet your beehive that with this law I'll be carrying. And I'll gladly be a test case if necessary. Arkansas gunowners and carriers are some of the most generous people anywhere and I'm absolutely positive that the test case will be awash with donated funds for the defense. If that case wins, we'll be the fifth state with official Constitutional Carry. If it's lost the defendant gets a class A misdemeanor. I'll take those odds.

I'm glad you are this confident. But I have to ask: this doesn't give you "constitutional carry" in your home county, does it? If that's so, I just don't understand all the hoopla.

 

[Spats McGee]

baz, that's one of the squirrelly things about this law. Because it frees up carry (to some arguable degree) outside of your home county, then one has to wonder what the effect is inside your home county. Frankly, I can only imagine *maybe* one or two counties where I would need to carry more than I do in my home county.

ETA: I agree with Sambo82 that we're going to have a test case, though. I can't be a test case, but someone will wind up being that case.

 

[Sambo82]

Baz, the 5-73-120 rewrite is the sticking point that Denny Altes and the rest of the Constitutional Carry advocates are claiming makes Arkansas a de-facto Constitutional Carry state. The rewrite inserts the condition that a person has to have the intent to unlawfully employ a handgun against another person to be guilty of the offense of "carrying a weapon". The word unlawfully didn't exist before, so self defense wasn't a defense against the charge of carrying a weapon in Arkansas, prior to this law. If you intended to use a handgun against a person for any reason, including self defense, you could be prosecuted even though the act of self defense itself in Arkansas is not a crime. Now a prosecutor has to show that a person intended to use said weapon unlawfully in order to charge someone with "carrying a weapon".

This clause rewrite is completely separate from the "journey" clause that Dustin McDaniel referenced in his letter. But, like we've said, it's probably going to have to go to court for any semblance of finality. Even though I'll be carrying next month, if I were not a resident of Arkansas I wouldn't carry here without a permit until a court decision is final.

 

[Prince Yamato]

For all intents and purposes it's constitutional carry; it's just that the bill has poorly worded language. Correct it in the next session.

 

[Spats McGee]

Let's also not forget that it hasn't been through the codification process yet. It will be interesting to see what, if any, changes the codification agency (whose name escapes me at the moment) makes during their part of this process.