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Arkansas’ ‘Open Carry’ gun law reviewed by UA law professors

story by Ryan Saylor
rsaylor@thecitywire.com

The debate over whether Arkansans can openly carry a firearm in public continues, and this time the University of Arkansas' law school has thrown itself in the middle of the debate.

In an article published on the Arkansas Law Notes section of UA Law's website, Associate Professor of Law Laurent Sacharoff and law student Jacob Worlow explain that "(s)ometimes the legislature — well — screws up."

They say while HB 1408, which would have allowed for open carry of licensed individuals, failed to win enough votes for passage, HB 1700 likely did accomplish "that very goal, and perhaps even permitted concealed carry without a license," even though the title of the bill said it was only enacting "technical" changes to the state's current gun laws.

Sacharoff and Worlow point to the language of Section 120 of the old and new laws.

"First consider the old Section 120, which made it a crime to possess a handgun with the “purpose” to use it as a weapon 'against a person.' …The new Section 120 changes the language of this purpose element by adding the word 'unlawfully.' It is now illegal to possess a handgun only if the person has the 'purpose' to use it 'unlawfully' against a person."

That said, the authors said "since practically anyone can reasonably say they intend to use the gun for self-defense, that would mean nearly anyone can carry a gun without a permit, open or concealed."

Even though it appears the law, which is in affect, would allow any law-abiding citizen to openly carry a firearm, the authors said it could still come under judicial scrutiny, largely based on questions of legislative intent and also the history of similar laws in the state.

That said, Sacharoff and Worlow said it was likely "a court facing a defendant arrested with a gun would interpret the statute based upon its plain meaning. When all is said and done, how can the court punish a person for following the literal and unambiguous meaning of the statute? A person should not be expected to consult the history of the law’s passage, or its political context, to understand what it proscribes."

LAW NOT A SCREW UP
Rep. Denny Altes, R-Fort Smith, said in a Facebook post Sunday linked to the UA Law article that he and his fellow legislators "did not screw up."

Altes said open carry had "been the law in Arkansas since at least the 1800s. He said through several attempts to update the law through the years were unsuccessful, he was able to strike the right balance with the language of HB 1700 to please groups including the Sheriff's Association, the Chiefs of Police Association, the Prosecutors' Association and the State Police.

"The old code was written so there were many defenses to carrying a weapon. So, I asked why not make it a right with exceptions. This met with approval from everyone. It seems that it is two sides of the same coin," he wrote. "So, we didn’t really change the law, we only clarified that it is a right to keep and bear arms according to the Second Amendment of our Constitution (According to Webster’s 'bear' means 'to carry')."

ATTORNEY GENERAL OPINION
Attorney General Dustin McDaniel in August of 2013 said the new law did not allow for an individual to do more than possess a handgun within that person's personal transportation when on a journey outside of the person's residential county, adding, "In offering this conclusion, I must stress that Act 746 in no way modifies the rights and obligations conferred upon those individuals who have obtained a concealed handgun permit pursuant to the pertinent provisions of the Arkansas Code."

That has not stopped a large number of law enforcement agencies and prosecutors from across Arkansas from declining to arrest or prosecute individuals found openly carrying a firearm. Among them, Fort Smith Police Chief Kevin Lindsey and Fort Smith Prosecuting Attorney John Settle, who said prior to an open carry protest walk in Fort Smith that there has to be proof of an “attempt to unlawfully use” a weapon against another person.

Reached for comment, Public Information Officer Aaron Sadler of the AG's office said, "The (Attorney General's) opinion speaks for itself."

OPEN CARRY RESPONSE
Steve Jones, communications director and a board member for the pro-2nd Amendment group Arkansas Carry, who organized the Fort Smith walk and several others around Arkansas, said the lack of consistency between McDaniel and others is a "shame."

"That's a shame that they cannot get on the same page even with the law department at the University of Arkansas," he said.

Jones said while Fort Smith was not abiding by McDaniel's opinion, other agencies are.

"I've contacted the Arkansas State Police back in August and they are going with what the Attorney General says. Any law enforcement who does not want to read the law exactly as it is written refers back to the Attorney General's opinion, which is basically ignoring what the law says. That's a shame because it's just flat wrong,” Jones said.

Since the law went into affect, there have no known arrests except of "people who were already committing crimes, which is how the law reads," according to Jones.

"Other than that, we do not know of anyone. We're looking and waiting to see if someone could be arrested to see how a law case would come out."

But if that is going to happen, it would require more and more agencies to take the stand of the ASP instead of the reception some open carriers have been receiving.

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"I know there are individuals across the state who open carry in Walmart, restaurants, and we've had no problems at all. We've even had law enforcement contact without any arrests,” Jones explained.

That said, Jones said as questions about open carry continue, it is important for Arkansas gun owners to use caution before strapping on a gun and leaving the house.

"We ask them if they want to carry a gun to contact law enforcement in their area and see how they are approaching this law. We are not telling people to open carry because it's legal. I want them to be sure to stay safe."

He said while it is the opinion of Arkansas Carry that openly carrying a firearm is legal, he has been surprised by the Attorney General and others who have said HB 1700 does not allow such behavior.

"Everyone who reads the law and reads it as a law that basically does not punish a person for exercising their rights can see that it's legal, except law enforcement. For some reason, law enforcement wants to arrest law-abiding citizens for carrying a handgun."

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