Saturday, June 06, 2015

AR: Bizarre Article Attempts to Discredit AR Constitutional Carry

Act 746 went into effect in 2013.  The law was clear at the time, and is clear now.  The Democrat Attorney General when the law went into effect, Dustin McDaniel, expressed an opinion about the law which seemed designed to cause confusion about the issue.   In the opinion, former AG McDaniel simply ignores the most important change in the law.    Here is the relevant section, ignored by McDaniel:

5-73-120. Carrying a weapon.
(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.

I have placed the change in the law in bold.  Four words make all the difference in the world, but it was a change never addressed by former AG McDaniel.

Since then, there have been dozens of open carry walks in Arkansas, and no one has been arrested in those walks.  There has been a law article written in Arkansas Law Notes that shows that the clear meaning of the law is Constitutional carry, though the authors do not like it.

The new AG has said that the law means what it says.  As long as you are not carrying the firearm with the intent to use it illegally as a weapon against another person, then the carry is not against the law.  It is hard to see how it could be more clear.

But, somehow, the news writers in Fayetteville try to create a controversy where none exists.    They cannot find a single existing government official to say that open carry is illegal in Arkansas, yet the writers treat the clear statements of all the government officials as if they are problematic and merely personal opinion.

What makes the law unclear in their minds?  Simply the muddy opinion written by the former AG, who does not even address the most important change in the law.   You have to read the article to see the contempt that the writers have for everyone except the former AG.     From

FAYETTEVILLE (KFSM) – Lt. Gov. Tim Griffin and Attorney General Leslie Rutledge say they believe current law in Arkansas allows people to carry handguns openly.

Responding to a question from a pro-gun Facebook site, the Republican lieutenant governor recently reiterated a view he has previously expressed in saying he thinks open carry is legal. Griffin’s office confirmed that statement on Tuesday (June 2).

A bill approved in the 2013 legislative session has some split on whether it allows people to carry handguns openly in a holster into a public setting. Dustin McDaniel, a Democrat who was the attorney general at the time, said open carry of handguns is illegal in the state under that law, Act 746.
If you read the opinion, that is not what former AG McDaniel wrote.  Here is his actual conclusion, very carefully parsed, in answer to a question solely about the modification of the definition of "journey" in Act 746:
But regardless of how the words “beyond the county” are interpreted, the answer to your particular question is clear, in my opinion: Act 746 does not authorize “open carry.” This act does not, in other words, permit a person to possess a handgun outside of their vehicle or other mode of transportation while on a journey outside their county of residence.
Of course Act 746 does not "permit a person to possess a handgun outside of their vehicle".  It simply changes the definition of when it is illegal to do so.  All of the authorities who have opined on this now agree.   Former AG McDaniels simply did not address that change in the law, but sidestepped the issue, and focused on the "journey" smokescreen. 

In the United States, as much as some would have it otherwise, that which is not forbidden, is allowed.  In tyrannies, that which is not allowed, is forbidden.

It is a huge difference in principle, with enormous practical significance.  In this case, it is not forbidden to carry a pistol in Arkansas, unless you intend to use it illegally against another person.  Simple.  Clear.  It is the law in Arkansas since August of 2013.

Arkansas is a Constitutional carry state.  No authority is claiming otherwise.  Let me state it one more time.  You do not need a permit to carry a handgun, openly or concealed, as long as you do not intend to use it illegally, as a weapon, against another person.  It is bizarre to see a newsroom attempt to create a controversy out of an old AG opinion that sidestepped the issue in the first place.

©2015 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch


Anonymous said...

If it is indeed legal to "constitutionally carry" and has been since 2013, then shouldn't the ASP be required to refund the money for all of those of us who paid $150 plus training costs to get the permit to carry?

Dean Weingarten said...

Why should the ASP refund money that you willingly spent? The permit allows you to gain reciprocity in other states. In many states it allows you to bypass the "instant check" system for firearm purchases at retail outlets.

Every state that has gone to constitutional carry from a permit system has retained the permit system for these purposes.