Attorney general OKs open carry with 'caveats,' suggestion for clarification | Arkansas Blog

Friday, August 28, 2015

Attorney general OKs open carry with 'caveats,' suggestion for clarification

Posted By on Fri, Aug 28, 2015 at 3:48 PM

LOCK AND LOAD: With some hemming and hawing, Attorney General Leslie Rutledge has given her OK to open carry of firearms.
  • LOCK AND LOAD: With some hemming and hawing, Attorney General Leslie Rutledge has given her OK to open carry of firearms.
Attorney General Leslie Rutledge today issued a carefully worded opinion that open carry of handguns was legalized by a 2013 law presented as only a technical correction. But she offered a number of "caveats" and also commented that confusion about the law "would be best alleviated by additional legislative action to clarify what Act 746 was trying to accomplish."

She also noted she did not "encourage" open carry.

To recapitulate: The 2013 legislature specifically defeated a bill to allow open carry. It did pass a law, described as a technical correction, that concerned when people could carry weapons on a "journey." Attorney General Dustin McDaniel previously issued an opinion that the law was a technical correction and did not allow open carry. Many prosecutors have taken up the position of open carry advocates that the law, by trick of language not mentioned at the time of passage, HAD legalized open carry.

The legislature has since met and failed to do anything about clarifying the situation, probably because legislators don't want to vote on the issue. They'd prefer the gun advocates' wishes  to become de facto law. This has been complicated by some prosecutions, including the recent successful prosecution of a man who carried a weapon openly into a McDonald's.

Pro-open carry legislators — Jon Woods, Nate Bell and Tim Lemons — asked for the opinion in early June. An opinion has been delayed — by press of other work, the AG's office has said. My sources indicated some resistance in the office to a reversal of McDaniel's earlier opinion. Rutledge has been saying in public that she personally believes the law legalized open carry.

Here's the opinion. The beginning is important:

Act 746 has created some confusion among both the people of Arkansas and law enforcement in Arkansas on these questions. Ordinary Arkansans want to know where and when they may legally possess a handgun. Arkansas law enforcement wants to understand what the law does and does not prohibit so that law enforcement can continue to keep us safe while respecting the rights of all Arkansans.

Ultimately, the confusion created would be best alleviated by additional legislative action to clarify what Act 746 was trying to accomplish. Nonetheless, my opinion below (and the attached addendum) is intended to provide as much clarity as possible to both law enforcement and ordinary citizens by explaining how I believe Act 746 currently bears on the ability of Arkansans to legally possess handguns on their persons and in their vehicles.

While I do not encourage “open carry,”[2] 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.[3] That means in general merely possessing a handgun on your person or in your vehicle does not violate § 5-73-120(a) and may be done if it does not violate other laws or regulations. However, there are four critical caveats to my opinion:

The caveats:

* Law officers can freely question anyone openly carrying a weapon about their purpose.

* Other statutes prohibit open carry in certain circumstances — in government buildings such as the Capitol, for example.

* Private property owners are entitled to keep firearms off their property, and armed people who refuse to leave can be prosecuted for trespass.

* The law doesn't affect concealed carry statutes. All carrying concealed weapons still must comply with permitting and other requirements.

Bottom line: Rutledge seems to have given the open carryers what they wanted — a statement that a law violation requires intent to use a weapon unlawfully and that mere possession doesn't qualify as intent. But she emphasized that possession of a loaded handgun in combination with other factors — demeanor, gait and manner, information from others and proximity to criminal conduct, for examples — could create a reasonable suspicion of intent to unlawfully employ a handgun as a weapon.

A bunch of bully boys swaggering around with pulled weapons might strike some as threatening, just to speculate on one example.

I'm back to where I started. Most jurisdictions in Arkansas are allowing open carry thanks to legislative trickery and the bullying of the gun lobby. If that's to be the law in Arkansas, let's make it law by vote of its elected representatives in open fashion. No subterfuge. No B.S.

I don't think it's a good idea. It's hard to read intent of someone with an openly carried gun in a crowded theater. At least until they start shooting.

And if we really do believe in the value of open carry for public safety, I hope the wusses in the Arkansas legislature — with their panic button, open carry and other such work — will allow it under the Capitol dome, too. Won't that make them all safer?

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