A Libertarian Response to the Arkansas AG Opinion on Act 746 Part 1

A Libertarian Response to the Arkansas AG Opinion on Act 746 Part 1

By Aaron Cash
Part 1 Response to Arkansas AG Opinion 2015-064
Full Opinion: http://ag.arkansas.gov/opinions/docs/2015-064.pdf

Disclaimer: 1. The following text is not legal advice and is for educational purposes only. I am not your lawyer, and my firm does not represent you. Speak with an attorney, whom you have hired, about how these statutes and issues should be interpreted. 2. I am neither encouraging nor discouraging the reader from carrying a weapon. It is your responsibility to know what is lawful and to follow the law. 3. This post is written in blog format and is not meant to be taken as a scholarly article. 4. In the interest of time, this post may plagiarize some of my prior writings.

Two or three of you will remember me from my 2014 campaign for Arkansas Attorney General. I participated in three debates, some press conferences, took calls on a radio show, and gave a speech at the Little Rock Club. In November, Arkansas voters gave me 5.2% (43,245) of the vote on a $0 donation campaign (except for the ~$50 filing fee, which was paid by a colleague). I appreciate all of the support and kind words from everyone I met along the way. It was an awesome experience for me, and I hope I made some difference for this state.

One of the major issues of the 2014 election season is still making headlines today. I am talking about “open carry.” In 2013 the Arkansas legislature passed Act 746, which makes certain changes to the statute which prohibits “carrying a weapon.” There has been much debate as to whether the 2013 changes to the law allow for individuals to carry a weapon (hereinafter, “handgun” or “gun”) without a license. Former Attorney General Dustin McDaniel (D) opined that Act 746 did not allow for open carry. See 2013 Open Carry Opinion. This year, Attorney General Leslie Rutledge, issued a slightly different opinion. See 2015 Open Carry Opinion.

I propose that Act 746 allows for open or concealed carry without a permit, and I have been saying so since the act was passed. At least one University of Arkansas Law Professor agrees with me, although he does call for the legislature to make changes. See Open Carry in Arkansas—An Ambiguous Statute.

What exactly are we talking about here? First, I encourage you to take a few minutes to read through the August 28, 2015 opinion issued by Attorney General Rutledge. In case the opinion is confusing to you, don’t worry, I’ll discuss some of it below.

With that out of the way, let’s dive in. What did Act 746 actually do in Arkansas? Let’s break it down.

Section 2 of Act 746
Section 2 of Act 746 amended A.C.A. 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.”

The previous version of A.C.A. 5-73-120 read as follows:
“(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 employ the handgun, knife, or club as a weapon against a person.”

As you can see, under a plain reading, these are some big changes. Previously, you could be convicted of carrying a weapon if you merely possessed it with the purpose to use it against another person. However, now, the prosecution must prove some additional elements, which, in my opinion, allow law-abiding citizens to carry weapons openly or concealed.

Analysis of New Statutory Elements:
To be convicted under the new version of the statute (AKA: Act 746), a prosecutor must prove each element beyond a reasonable doubt. This means that prosecutor prove to a jury 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 these elements is not proven beyond a reasonable doubt, then an individual cannot be convicted of “carrying a weapon.” For example, if an individual’s purpose is to lawfully employ the handgun against someone else in self-defense, he/she cannot be convicted. If one plans to use the gun against an animal, then she cannot be convicted. However, keep in mind that one’s purpose may be inferred from the circumstances. It would be a clear violation of the statute, as well as others, to pull a gun during a heated road rage argument. This example is on the extreme end of the spectrum, but you get the idea. Keep in mind that there are other statutes which criminalize possession of a weapon in certain areas. You can find a partial list of those at the end of Rutledge’s opinion.

So, it seems like Attorney General Rutledge and I are mostly in agreement on the meaning of A.C.A. 5-73-120(a) when it comes to “open carry”. So, on which areas do we disagree?
1. Concealed carry without a license;
2. The definition of the “journey” clause as amended by Act 746 (addressed later in Part 2);
3. Ability of law enforcement to stop and detain individuals merely to ascertain their “purpose” in carrying a firearm openly (addressed later in Part 2);

Concealed Carry Without a License
Attorney General Rutledge opines, incorrectly, that an individual may not carry a concealed weapon in this state without having first obtained a concealed carry permit from the Arkansas State Police (ASP). The ASP collects Second Amendment licensing fees of $144.94 for applicants ages 21-65 and $93.44 for those over 65.
In support of her proposition that an individual may not carry a concealed handgun without a license, Rutledge cites to what she calls the “concealed carry licensing scheme” which “predates Act 746.” It can be found at Ark. Code Ann. § 5-73-301 et seq. (Rep I. 2005 and Supp. 2013). She also mentions that Act 746 does not repeal the concealed carry statutes by implication. She may be right (that’s a discussion for another day). But so what? Prosecutors do not charge individuals with weapons crimes under § 5-73-301 et seq. because it does not prohibit you from carrying a weapon. Instead, prosecutors charge “carrying a weapon” under A.C.A. 5-73-120 (as amended by Act 746). This is something an experienced prosecutor and sitting Attorney General of Arkansas should know.
Let’s take a look at at the “concealed carry licensing scheme” found at § 5-73-301 et seq. and see if it prohibits carrying a concealed handgun without license and whether it provides a criminal punishment for doing so. It’s long. So, bear with me.
● 5-73-301 provides definitions of certain legal terms;
● 5-73-302 provides certain government officials the authority to issue licenses;
● 5-73-303 provides civil immunity to certain entities;
● 5-73-304 exempts certain officials from the licensing scheme;
● 5-73-305 provides the penalty for lying on the application;
● 5-73-306 states that “No license to carry a concealed handgun issued pursuant to this subchapter authorizes any person to carry a concealed handgun into” a list of certain places;
○ This section lists out certain places where an individual is not authorized by a concealed carry license to carry a handgun. This does not mean that the “concealed carry licensing scheme” provides for criminal punishment for a violation. Such criminal charges, if any, would necessarily fall under other statutes not relevant to this discussion.
● 5-73-307 provides for an automated listing of license holders;
● 5-73-308 discusses “Issuance of licenses–denial, suspension, and revocation of licenses”’
● § 5-73-309 lists the requirements for an individual to be approved for a license, such as criminal and mental health history;
● § 5-73-310 lists the requirements for the application form;
● § 5-73-311. discusses the application procedure;
● § 5-73-312. discusses revocation of licenses;
● § 5-73-313. talks about expiration and renewal of licenses;
● § 5-73-314. Lost, destroyed, or duplicate license–Change of address;
● § 5-73-315. “Any licensee possessing a valid license issued pursuant to this subchapter may carry a concealed handgun”;
○ At the time this was drafted, an individual could not legally carry a handgun due to A.C.A. 5-73-120(a), which was enacted prior to the “concealed carry licensing scheme.” So, of course the legislature authorized concealed carry here, but that is not the issue. The issue is that this section does not prohibit concealed carry without a license.
● § 5-73-316. provides for licensing fees;
● § 5-73-317. allows the director of the Arkansas State Police to draft rules and regulations to administer the subchapter;
● § 5-73-318. has rules for Instructors;
● § 5-73-319. Transfer of a license to Arkansas;
● § 5-73-320. License for certain members of the Arkansas National Guard or a reserve component or active duty military personnel;
● § 5-73-321. Recognition of other states’ licenses;
● § 5-73-322. Concealed handguns in a university, college, or community college building;
○ This section allows for certain persons to carry on college campuses but does not provide for a criminal punishment for violations. Such charges, if any, must fall under another criminal statute.
● § 5-73-323. Parole board exemptions;

So, that’s a brief overview of the entire “concealed carry licensing scheme.” As you can see, it does not prohibit concealed carry without a license. However, it does authorize concealed carry with a license. And why did it have to do that? Because in 1995 when it was enacted, it was illegal under A.C.A. 5-73-120(a) to carry a handgun. Now that Act 746 is in place, it is no longer illegal to carry a weapon as long as you do not have the purpose to unlawfully use it against another person. Rutledge seemingly agreed with me on this point when she stated:

“In my opinion, Act 746’s amendments to§ 5-73-120 mean that (1) the statute only criminalizes a person’s “possess[ing] a handgun on or about his or her person, in a vehicle occupied by the person, or otherwise readily available for use” if he or she simultaneously has the intent “to attempt to unlawfully employ the handgun … as a weapon” against a person, and (2) this unlawful intent may not be presumed simply because that person possesses a loaded handgun.”

.

Conclusion

You may open or concealed carry a handgun in Arkansas as long as you do not have unlawful intent or violate any criminal laws. The “concealed carry licensing scheme” does not prohibit you from doing so.
I will address Attorney General Rutledge’s definition of the “journey” clause as amended by Act 746 and the ability of law enforcement to stop and detain individuals merely to ascertain their “purpose” in carrying a firearm openly in part 2. Stay tuned.

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