Thursday, February 27, 2014

AR: Law Journal: Meaning of Carry Law Plain, Legislature Screwed up

Constitutional Carry Walk in Little Rock, Arkansas

An article in Arkansas  Law Notes by Associate Professor Laurent Sacharoff and student Jacob Worlow, expresses their understanding and concern with Act 746 (formerly H.B. 1700), the act that made constitutional carry the law in Arkansas.  The law went into effect in August of 2013.

The authors deserve credit.  They clearly state what the law does, rather than attempt to use sleight of hand to discredit it, as did Attorney General McDaniels.   They mention that the vast majority of prosecutors in the state agree with their interpretation of the plain language of the law:
As noted above, John Threet, the Washington County Prosecutor, has directed the Sheriff not to arrest those carrying handguns, even without a permit, unless other circumstances suggest the person intends to use the gun to commit a crime such as robbery. Threet also reports that at the last meeting of prosecutors from all 28 judicial districts in Arkansas, only 2 were instructing police or sheriffs to arrest—though he emphasized this was not a formal vote but merely his sense of the room.
The article is interesting in a number of ways.  First, it is clear that the authors consider the passage of act 746 a bad thing.  Here is the last paragraph in the article:
 Section 120 deserves immediate attention from the legislature. If it wants to legalize open carry, do so openly, as it were, though we would have the legislature not only clarify the law, but restore it to its responsible previous substance—requiring citizens to first acquire a license before carrying a concealed weapon, and banning open carry entirely.
Even though the authors disapprove of the law, they are honest in their assessments of it.    Another point from the article is that they believe that the not only the legislature screwed up, but perhaps more importantly, the media screwed up:
Courts should also look to the history of related bills, and here the legislature recently rejected two, H.B. 1231 and H.B. 1408. H.B. 1231, that would have permitted certain school employees to carry weapons on school grounds as security personnel. 15 The bill received massive attention from the media prior to its rejection. On the other hand, H.B. 1700 did not receive any considerable media attention prior to the day Governor Beebe signed it, nor does it seem that anyone had even remotely characterized H.B. 1700 as an open carry bill. H.B. 1700’s smooth and silent path to enactment strongly suggests that the legislature did not comprehend any open carry interpretation of the bill.
I find this a sideways acknowledgement that the media is at least as powerful as the legislature.   How is the legislature supposed to know how to vote, if the media does not tell them in advance?   While I am exaggerating to make a point here, this example is particularly striking if you have read Daniel Greenfield's essay, "The rise of the mediacracy".  In it, he postulates that the media exerts far more power in selecting the legislature than the people do.

In an article in thecitywire, in response to the UA law article, Denny Altes, R- Fort Smith says that he and fellow lawmakers "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')."
In the citywire article, Steve Jones of Arkansas Carry says that no one has been arrested for open carrying by itself:
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."
 Steve Jones and others have been instrumental in organizing open carry marches, also known as constitutional carry marches, or celebration of Act 746 marches around the State to educate the population about their rights and the new law.

In the end, the authors of the law article offer the obvious solution to those who do not like the new law: have the legislature change the law to something that they like better.

I suspect that will not happen.  The old law was put in place with deliberate ambiguity and was selectively used to deprive people who were not in favor with local elites, of their rights.   It is one thing to use the power of the media to stop a law.   It is much harder to remove it once it is in place.

On an interesting historical note, Arkansas was the home of the infamous Judge Heartsill Ragon, who plotted and engineered the controversial U.S. v Miller case to finagle the constitutionality of the first effective national gun control law, the National Firearms Act (NFA) of 1934.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch

1 comment:

Anonymous said...

I have to say, much as I support both open and concealed constitutional carry, the way this law was passed felt funny from the very beginning. It's almost as if someone sneaked in a minor change of wording with major legal consequences not enough of the legislators expected or wanted, and kept mum about it, including to the governor as he was about to sign it.

I hope this is not the case - otherwise, this law may not know peace for a long time. And neither will its author.