During the last legislative session, gun rights proponents pushed a bill that would have allowed Arkansans to carry handguns openly in certain areas-often called an “open carry” law. The bill they sought did not pass.
But the Legislature did make a few modifications to the existing possession law that gun proponents argue will accomplish what they sought in the first place: the right to carry a handgun openly, except in sensitive places like schools. In fact, some argue it accomplished more, allowing open or concealed carry, with or without a license.
The news that the new statute, whose title expressly says it is only making “technical” changes, will accomplish such a far-reaching change in Arkansas law took many by surprise.
The first argument in favor of open carry points to the old “journey” exception, now newly defined, but there’s really nothing to see here. On July 8 the Attorney General interpreted this provision to mean that a person may carry a handgun in his or her car during a trip to another county, but that the journey exception does not in effect permit open carry. The possession must be, well, part of the journey. We may argue what counts as part of the journey-the gas station, a hotel room, etc. -but that’s a long way from open carry.
Another change creates a far more difficult question and a potentially gigantic loophole. It involves the simple addition of the word “unlawfully.” The Attorney General’s opinion does not address this change (it was not asked to), other than a footnote observing that “one might debate the significance” of the change. That is an understatement.
To understand the change, let’s first consider the old statute making it a crime to possess with a “purpose” to use the handgun as a weapon “against a person.” Two examples will illustrate. If someone is driving with an unloaded handgun to go hunting, they do not have the purpose to use it as a weapon against a person and therefore do not fall under the statute (deer, however, should remain wary). But if someone carries the handgun for self-defense, they are obviously carrying it with the purpose to use against a person if necessary, and the old statute bans that conduct (unless the possession falls under some exception such as a concealed handgun license).
The new statute will change the language of this purpose element. It will only criminalize possession if the person has the purpose to use it unlawfully. Since self-defense is a lawful use, at least as against deadly force or rape, gun proponents argue the law now allows anyone (except certain felons) to possess a handgun for self-defense purposes. If so, it would allow open carry and perhaps even concealed carry without a permit as long as the person intends to use it to defend against a deadly attack.
So if the words of the new statute literally permit open carry, are we done?
No. The open-carry argument runs into a problem when we try to answer the common-sense question: What did the Legislature intend? The open-carry interpretation would essentially render the entire concealed license statute, 21 detailed sections, irrelevant. After all, if it is not a crime to carry a gun, why get a license? (There might be a few times a license might now be necessary or helpful, but for most uses a person would no longer need one.) For example, Arkansas can deny a concealed handgun license to those who have committed certain misdemeanors; such a person under the open-carry interpretation could now sidestep the license requirement.
Even if one argued that a person who wants to carry openly still needs a license, why didn’t the Legislature change the “concealed” carry license language to simply a license, since it now supposedly permits open carry? After all, the Legislature amended other aspects of the concealed license statute.
We thus have two very conflicting interpretations of this law, which goes into effect Aug. 16. My best guess is that a court faced with a criminal case will apply the rule of lenity, which requires an acquittal if it finds the statute ambiguous.
In the end, open carry is neither a good outcome nor the outcome I believe the Legislature or governor intended. But the ambiguity suggests the Legislature should revise the statute to make clear it does not permit open carry, particularly without any license whatsoever.
Laurent Sacharoff is a law professor at the University of Arkansas School of Law.
Perspective, Pages 71 on 07/21/2013