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New “Open Carry” Act Creating Many Questions

According to Prosecuting Attorney, Andy Riner, many citizens want to know whether or not the Arkansas General Assembly has authorized the “open carry” of firearms.  Before the General Assembly passed Act 746 of 2013, the question was clearly “no.”  Now, according to certain groups, “open carry” is arguably permitted.

OpenCarry.org states that “Arkansas will become the nation’s 45th open carry state on August 15th of this year.” Not so says Arkansas Attorney General Dustin McDaniel.  In Attorney General’s Opinion No. 2013-47, issued on July 8, 2013, McDaniel said, “I do not interpret Act 746 as authorizing so-called ‘open carry.’”  OpenCarry.org and other groups make two legal arguments that “open carry” will be legal in Arkansas after August 15.

For years Arkansas law has criminalized the offense of carrying a weapon.  Ark. Code Ann. § 5-73-120 makes Carrying a Weapon, a Class “A” Misdemeanor, punishable by up to one year in the County Jail and/or a fine of up to $2500.00. Among the prohibited weapons included in this statute are handguns, knives, and clubs.  The statute itself specifically defines each of these terms.

One of the changes in the law arguably permitting “open carry” is a new definition for the term “journey.”  The so-called “journey exception” recognized by the Arkansas Supreme Court has traditionally permitted Arkansans to possess a weapon to protect against the “perils of the highway” when upon a “journey.” The Arkansas Supreme Court has said that a “journey” takes a person “beyond the circle of his neighbors and general acquaintances and outside the routine of his daily business.”

Act 746 redefined “journey” as “travel beyond the county in which a person lives.”  Some proponents of “open carry” argue that this change permits a person going outside his or her county of residence to openly carry a firearm or other weapon.  The Attorney General disagrees.  He states that Act 746 does not “permit a person to possess a firearm outside of their vehicle or other mode of transportation while on a journey outside of their county of residence.” Further, the Attorney General indicated that Act 746 actually “narrowed” the journey exception to exclude travel within his or her home county instead of the more broad traditional definition of “beyond his circle of neighbors,” etc.

Secondly, some proponents of “open carry” argue that changes in the statute require the police to prove that a person is attempting to unlawfully employ a carried weapon against a person.  Hence, they argue that it would be difficult, if not impossible, to convict an otherwise law-abiding citizen of carrying a weapon.  The Attorney General, however, notes that Arkansas case law and commentary to the statutes indicate that a weapon carried on or about a person or loaded pistol in a vehicle have both been historically presumed to be employed as a weapon.  Further, if the interpretation urged by some “open carry” proponents were true, there would be no need for a “journey exception.”

Both sides of the debate would likely agree that getting a concealed handgun license and complying with the rules for a concealed handgun license certainly permit Arkansans to legally carry a firearm.  While an Attorney General’s opinion is not binding, it advises elected officials as to how the courts would likely decide an issue.  Since the Arkansas Supreme Court does not normally issue advisory opinions, the only way to know for certain how the courts will interpret Act 746 is for someone to be arrested, charged, jailed, tried, found guilty, and successfully appeal a conviction.  Few people are so committed to the “open carry” cause that they would go through this much trouble to make these legal arguments when it is so easy to get a concealed carry license.

For more, the entire text of Attorney General’s Opinion No. 2013-047 may be found at http://ag.arkansas.gov/opinions/docs/2013-047.pdf.