AAC


To open carry or not to open carry? That may no longer be the question


previous administration. An attempt by the General Assembly in 2013 to make “technical corrections” to clarify when a person may openly carry a handgun “on a journey” did anything but simplify the status of open carry in Arkansas. Act 746 of 2013, sponsored by then-Rep. Denny Altes, and picking up numerous co-sponsors, was introduced as House Bill 1700, “An Act Making Technical Corrections Concerning the Possession of a Handgun and Other Weapons in Certain Places; and for Other Purposes.” Previously, the statute to be amended listed several defenses to prosecution for unlawfully carrying a firearm, including when “Te person is on a jour- ney” and at least 18 years old. Members of the Gen- eral Assembly understand- ably viewed the “jour- ney” label as ambiguous and sought to clarify that language. Undefined by statute, Attorney General Opinion 2011-092 de- fined “journey” as a heavily fact-dependent factor, but otherwise being “a distance from home sufficient to carry him beyond the circle of his neighbors and general acquaintances and outside the routine of his daily business.” Te courts had dif- ficulties defining “journey” as well for this purpose. Act 746 was an attempt to clarify this definition by defining a “journey” as traveling “beyond the county in which the person lives.” Tis, as a technical correction, or clarification, seemed simple enough. However, the act arguably appeared to go beyond mere tech- nical corrections or clarification with another change. Prior to Act 746, Ark. Code § 5-73-120 defined the offense of unlaw- fully carrying a weapon as when a person possessed “a handgun, knife, or club on or about his or her person” in a vehicle occupied by the person “or otherwise readily available for use with a pur- pose to employ the handgun, knife, or club as a weapon against a person.” Section 2 of Act 746 added two short, but important phrases: “... with a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.” Open carry advocates began to tout the act as a victory, saying that the Section 2 changes created a mens rea or intent requirement to commit the offense of unlawfully carrying a firearm — that one must have the intent to unlawfully employ the weapon against a


T T COUNTY LINES, WINTER 2018


he question of whether open carry is the law in Arkansas has been at issue for some time, but re- cent statements from constitutional officers seem to signal a turn towards its legality, as opposed to the


he question of whether open carry is the law in Arkansas has been at issue for some time,


but recent statements from constitutional officers seem to signal a turn towards its legality, as opposed to the previous administration.


person. In fact a true open carry bill that had been filed was withdrawn by its sponsor shortly after the passage of Act 746. However, the bill’s spon- sor and those who supported the bill (28 Senators and 82 Representatives, with no votes cast) denied that Act 746 was a backdoor attempt to allow unfettered open carry in Arkansas. Ten-Sen. Eddie Joe Williams re- quested an Attorney General Opinion to opine on whether “Act 746 now permits a person to be able to carry a handgun, in plain view or concealed, if they leave their county” so long as they do not visit a prohibited location. Attorney General at the time, Dustin McDaniel, opined that a person does not fall within Act 746’s “journey” defense to unlawfully car- rying a firearm “simply because the person has left the county in which he or she lives.” He went on to explicitly state, “I do not interpret Act 746 as au- thorizing so-called ‘open carry.’ To


LINDSEY BAILEY General Counsel


the contrary, the journey exception ap-


plies only to ‘travel beyond the county in which a person lives’ — a narrow range of activity inconsistent with the concept of [true, unfettered] ‘open carry.’” Terefore, post-Attorney Gen- eral Opinion 2013-047, the consensus among most was that one could not open carry in Arkansas absent being on a journey out- side of one’s county of residence. At least one court seemed to affirm that opinion when, in 2014, a man was arrested for and charged with, among other things, unlawfully openly carrying a weapon in a White County Walmart store, resulting in a revocation of his concealed carry permit. Circuit Court Judge Wendell Griffen rejected as “sense- less” the man’s argument that his permit should be restored be- cause open carry was now permitted so long as no unlawful in- tent was present to employ the weapon against a person. Te case was not appealed to a higher court. However, that consensus began to break down in 2015, when


newly elected Attorney General Leslie Rutledge began to publicly declare that, while she acknowledged legitimate confusion about the law, she personally believed true open carry was legal in Ar-


See “CARRY” on Page 18 >>> 17


LEGAL CORNER


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