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July 26, 2018

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"Open Carry" in Arkansas

July 7, 2017

In August 2013, the legislature revised Arkansas’s gun possession law. Now, some citizens may be permitted to openly carry a weapon without first having to obtain a license or go through any other type of regulatory process.[1] While this law does not condone unlicensed concealed carry, it deviates from the anti-individual approach to gun regulation because it allows some individuals to express their Second Amendment rights by openly carrying guns in the public arena.[2] Now, individuals may not need a permit to carry a weapon openly, instead they may only need a lawful purpose.[3] Under the amended law, a person can still be arrested for carrying a weapon openly if he or she does so with an intent to use the weapon unlawfully.[4]

 

The statute at issue provides, "[a] person commits the offense of carrying a weapon if he or she possesses a handgun, knife, or club on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use with a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person."(emphasis added). The addition of "unlawful" to the statute makes it difficult for police officers to determine whether individuals are openly carrying weapons for unlawful purposes before they are able to make an arrest. 

 

Because Arkansas now permits open carry in certain situations, some citizens may possess a weapon in plain sight or strapped to their hip in a holster without a permit. Gun carriers are still not allowed to possess weapons in certain prohibited places, schools and churches,[5]and citizens must apply for a permit if they want to carry a concealed weapon.[6]

 

The new gun law passed through Arkansas’s House and Senate with only one nay vote.[7] The legislature referred to the bill as an Act that addressed certain technical corrections to the weapon possession law.[8] The most important “technical change,” however, did more than just make slight changes to the statute; it completely altered the criminal offense of gun possession.[9]

 

There is still much confusion surrounding this law, and public officials are battling with how to apply it and enforce it. It is important to discuss your individual gun rights with an attorney. Contact Erin W. Lewis Law today for information about your rights and to determine whether you are breaking the law.

 

 

 

 

 

[1] See Ark. Code Ann. § 5-73-120(a) (West 2013) (amending the mental state required to support a conviction for unlawful possession of a weapon).

 

[2] Id. (making it clear that individual must get a permit before they can legally carry a concealed weapon). The anti-individual approach to gun laws is a theory or viewpoint that gun possession should be heavy regulated and that Second Amendment rights should be afforded only minimal protection under a constitutional analysis. David B. Kopel & Clayton Cramer, The Second Amendment in the Nineteenth Century, 1998 BYU L. Rev. 1359, 1365-76 (1998).

 

[3] Id. § 5-73-120(a) (West 2013) (making it illegal to carry a weapon openly for unlawful purpose). An essential lawful purpose is self-defense. See District of Columbia v. Heller, 554 U.S. 570, 630 (2008) (describing self-defense as a core lawful purpose). While the Court does not discuss other lawful purposes, it stresses that self-defense against a criminal is an essential lawful purpose that is protected by the Second Amendment. Michael P. O’Shea, The Right to Defensive Arms After District of Columbia v. Heller, 111 W. Va. L. Rev. 349, 351 (2009). In addition, the Constitution of Wisconsin contains a list of law purposes to the “Right to Keep and Bears Arms” section of the state’s constitution: security, defense, hunting, and recreation.” Wis. Const. art. I § 25.

 

[4] Ark. Code Ann. § 5-73-120(a) (West 2013).

 

[5] Id. § 5-74-119 (Repl. 2005).

 

[6] Id. § 5-73-301 et. seq. (Repl. 2005).

 

[7] HB 1700: Making Technical Corrections Concerning the Possession of a Handgun and Other Weapons in Certain Places, ArkLeg.State.Ar.us http://www.arkleg.state.ar.us/assembly/2013/2013R/Pages/BillStatusHistory.aspx?measureno=HB1700 (Apr. 4, 2013). On March 26, 2013, gun law passed through the house with only one nay vote and with seventeen people not voting. Id. Representative John Baine of El Dorado was the only nay vote. Id. The gun law passed through the senate with twenty-eight yeas, zero nays, and with seven people not voting. Id.

 

[8]  Id.

 

[9] Ark. Code Ann. § 5-73-120(a) (West 2013). 

 

 

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