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Thursday, March 13, 2014

UA law analysis: 'Open carry' law is ambiguous, also all or nothing

Posted By on Thu, Mar 13, 2014 at 7:07 AM

click to enlarge ARMED: Pro-carry demonstrator with his strap-on outside the Arkansas Times during an recent event.
  • ARMED: Pro-carry demonstrator with his strap-on outside the Arkansas Times during an recent event.
Did the Arkansas legislature really intend to allow open carry of guns in addressing a technical issue of what constitutes a 'journey' under the old law on carrying a firearm? Of course not. Now comes a legal article from the University of Arkansas with the same answer and plenty of supporting analysis.

The Baxter Bulletin has a good report on an analysis at the UA  by law professor Laurent Sacharoff and student Jacob Worlow. Their article says, for starters:

Sometimes the legislature—well—screws up. It might put language into a statute that has unintended consequences, or language that has two possible interpretations, or language that seems clear but might lead to absurd results. When the legislature drafts unclear criminal statutes, especially those involving guns, the mistakes can have serious consequences.

As residents of Arkansas, we find these resulting statutes to be an affront to clarity, fairness, and good judgment

Here's the full article.

The background is familiar to all who follow gun nuttery. Legislation to permit open carry of weapons in Arkansas was soundly defeated in 2013. Sloppy drafting of a bill to clear up what constitutes a "journey" — carrying of a firearm has long been allowed on a "journey" in Arkansas — was approved. The attorney general has opined otherwise, but the gun nuts have interpreted the law to permit open carry. A few dozen of them have been staging marches with their strap-ons around the state. As yet, no legal case has emerged to test what the law really means. Notes the law article:

The new law defined “journey” as travel outside a person’s county of residence. While that change clarified what is to be considered a “journey,” other language was added to the law, and that’s where the confusion lies, as Sacharoff and Worlow noted.

“We are thus left with two contradictory signs,” they wrote. “The plain language of the statute allows practically anyone to carry, openly or concealed, without a license, whereas the legislature almost certainly did not intend such a result.”

This has been my point all along. If the gun nuts are right, if open carry really was permitted, it doesn't stop there.  It goes much farther than strap-ons. It neuters the concealed carry law, too. Toting a gun, open or concealed, now has no limits in Arkansas. Understanding how inflammatory that might be, the gunners mostly aren't pushing for unregulated concealed carry. They just want  their strap-ons. (And to bully businesses that choose not to welcome their sidearms.)

Sacharoff and Worlow note that the legislature defeated not one, but two bills to allow some version of open carry. This is circumstantial evidence of legislative intent. But, in Arkansas, legislative intent may be read only through the plain words of a statute. And this statute isn't so clear. They authors make the obvious point.

“If it (the legislature) wants to legalize open carry, do so openly, as it were,” Sacharoff and Worlow wrote. “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.”


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