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

By Lindsey Bailey, AAC General Counsel

The 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. 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 “The person is on a journey” and at least 18 years old. Members of the General Assembly understandably viewed the “journey” label as ambiguous and sought to clarify that language. Undefined by statute, Attorney General Opinion 2011-092 defined “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.” The courts had difficulties 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.” This, as a technical correction, or clarification, seemed simple enough.

However, the act arguably appeared to go beyond mere technical corrections or clarification with another change. Prior to Act 746, Ark. Code § 5-73-120 defined the offense of unlawfully 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 purpose 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 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 sponsor 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.

Then-Sen. Eddie Joe Williams requested 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 carrying 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 authorizing so-called ‘open carry.’ To the contrary, the journey exception applies 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.’” Therefore, post-Attorney General Opinion 2013-047, the consensus among most was that one could not open carry in Arkansas absent being on a journey outside 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 “senseless” the man’s argument that his permit should be restored because open carry was now permitted so long as no unlawful intent was present to employ the weapon against a person. The 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 Arkansas after Act 746 of 2013. This opened the door for three lawmakers, former Sen. Jon Woods, Rep. Tim Lemons, and former Rep. Nate Bell to ask General Rutledge for an official opinion on the state of open carry in Arkansas to provide clarity to both citizens who choose to carry firearms as well as the law enforcement officers who are charged with enforcing the law.

In Attorney General Opinion 2015-064, Rutledge opined:

While I do not encourage “open carry,” it is my opinion that if a person does not have the intent to “attempt to unlawfully employ a handgun . . . as a weapon against [another],” he or she may “possess a handgun . . . on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use,” without violating § 5-73-120(a) as amended by Act 746.

General Rutledge went on to list there were still some caveats to open carry: law enforcement officers can freely question anyone carrying a weapon concerning their purpose; open carry does not apply to otherwise prohibited locations, such as the state Capitol; private property owners have the right to prohibit firearms on their property, with incompliance resulting in a charge of trespass; and concealed carry statutes were not changed and must be complied with when carrying a concealed weapon. While Attorney General opinions are not binding law per se, many Arkansans began to cite this opinion as confirmation that open carry was legal in Arkansas. However, there have been no court cases in the state since the opinion was issued, which would effectively solidify open carry as firm, concrete Arkansas law.

Since the Attorney General Opinion 2015-064 was released, the issue of open carry has remained relatively quiet and void of public incidents covered by the media. However, after no official direction to state law enforcement agencies on the issue for two years, in December 2017, Gov. Asa Hutchinson issued a letter to the Arkansas State Police stating, “Act 746 of 2013 clarified that a person may open carry a handgun so long as there is no intent to unlawfully employ the handgun.”

The Governor further states that in his view the language is clear and lawful. He notes that while local jurisdictions have differed on their interpretation of Act 746, “The State police is the lead law enforcement agency in Arkansas and sets the standard for enforcement policy across the state.” While he expresses doubt that the state police have cited any person for mere open carry, he thinks such a citation would be “both inappropriate and inconsistent with Arkansas state law.” The letter goes on to express surprise that the Arkansas Supreme Court has not ruled on the language of Act 746, which explains the Governor’s reluctance to make a statement to state police before now. However, no case on this issue has made its way before the Court.

As a result, the Governor has directed all state police, “open carry of a handgun is protected and allowed, so long as there is no intent to unlawfully employee the handgun,” and that the act of open carry of a handgun alone should not be cause for revocation of an individual’s concealed carry license. However, a concealed carry license is still required to carry a concealed handgun. Three weeks after the Governor issued this instruction, the Arkansas Game and Fish Commission approved a regulation change allowing open carry “for personal protection while on any wildlife management area or Commission-controlled property or lake.” Previously, unless it was hunting season, a person had to have a concealed carry permit to possess a handgun in these areas. A concealed carry license is still required to possess a concealed handgun on the properties. Finally, it is worth noting that in 2017, the General Assembly approved the issuance by Arkansas State Police of “enhanced concealed carry permits,” which would allow for permit holders to carry concealed handguns into some public buildings which were previously prohibited. Anticipated upcoming guidance from the Arkansas State Police about the extent of the enhanced concealed carry licenses’ application should be helpful to law enforcement officers attempting to enforce current concealed carry laws.