Arkansas AG Keeps Cops and Gun Owners Guessing

As we’ve all seen to great effect in the last week, watching laws get made is not for the faint of heart. I’ve made sausage before. That’s a picnic by comparison. Which goes a long way toward explaining something as vague and open to legal interpretation and potential abuse as Arkansas’ “journey” exception to its carry laws. So, when you have a legislative product as poorly crafted as this, it’s only natural to ask for clarification, right? Well, no. This is the state where you have to worry about what the meaning of ‘is’ is. And that’s just the way they like it…

Down where the razorbacks run free:

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 employ the handgun, knife, or club as a weapon against a person.

There are a number of exceptions (being on your property, in your own business, yadda, yadda, yadda)…and when:

The person is carrying a weapon when upon a journey, unless the journey is through a commercial airport when presenting at the security checkpoint in the airport or is in the person’s checked baggage and is not a lawfully declared weapon;

The big question, of course, is…what’s a journey? Does running down to the Kwiky Mart for a six pack constitute a journey? How about hiking through the woods? Or driving from one end of the state to another? Anyone? Exactly.

So, prompted by the folks at arkansascarry.org, Sen. Jake Files requested clarification from the state’s attorney general, Dustin McDaniel. Who said no.

The word “journey” is not defined by A.C.A. §5-73-120 or any other statute. I am of course unable to supply a controlling definition of a term that the General Assembly has not defined.

This office has consistently taken the position that in the absence of a legislatively- or judicially-formulated definition, it is inappropriate for the Attorney General, being a member of the executive branch of government, to formulate a controlling definition.

I guess that means there’s no controlling legal authority in play here. Which doesn’t provide much help to the people and law enforcement officials of The Natural State.

And that was exactly McDaniel’s intent. Had he given some guidance on the matter, it would have potentially tied his hands in future prosecutions. Clarity in the law can be inconvenient that way.

No, it’s much better to keep the little people guessing. That gives the dedicated modern bureaucrat some very handy operational latitude to apply the law however he damned well pleases, depending on the circumstances and who’s managed to ensnare themselves in the vaguely crafted law.

All of which diminishes that whole regnat populus stuff a little bit.

 

comments

  1. avatar Sid says:

    If they pull me over and “Only the Young Can Say” is blasting out the window, then I have I met the legal requirement to inform the officer I am concealed carrying?

  2. avatar Dogman says:

    “Officer, I have a concealed carry permit, I am armed and I am on a journey.”

    You’re covered.

    I guess.

    Maybe.

  3. avatar Rebecca says:

    IANAL (I Am Not A Lawyer) but I’d guess that if someone were arrested under this law and it went to court, I would expect the defense lawyer to question the whole “journey” thing and get the law thrown out.

  4. avatar rick wagner says:

    In Missouri any trip in a car is a journey, our car is the same as our home. The gun only has to be concealed. Missouri is in the top 5 of the states with the most freedom

  5. avatar Joshua Bynum says:

    This is the fault of the legislature. They enact laws that are vague enough to pass, and through it to the judicial and executive branches to sort it out. I respect the AG for refusing to interpret the law; maybe the legislature will be forced to define laws in the future.

    1. avatar ankle says:

      +1 The legislature should write laws decently in the first place; if they don’t, it’s not the AG’s job to say what the laws mean. That’s what the state supremes are for, and they only get involved when someone comes to trial under the wacky law. The thing to do is get Sen. Files to amend the law into something decent, not quiz the AG on what he’ll do.

  6. avatar Daniel Zimmerman says:

    Like Rebecca, IANAL. And I agree it’s the fault of the legislature. But the AG has to work with the laws that are passed. He interprets drivel like this flowing out of the capitol every day. That’s a big part of his job.

    If, based on the AG’s interpretation and application, the legislature doesn’t think the law is working as they intended, they’re free to pass a new law updating it. Then again, if they’d done a better job of drafting it in the first place, that wouldn’t be necessary.

    Except in cases in which they were intentionally vague, of course.

  7. avatar Ralph says:

    Warning. IWALBIRANIARLWHNLMW: I was a lawyer before I retired and now I’m a retired lawyer, which has no legal meaning whatsoever.

    With no legislative definition and no case law to guide him, the AG did exactly the right thing. He punted. Kudos to him for not making sh!t up.

    My definition of Journey involves “Keep on Believing” blasting on the stereo.

    1. avatar xpo172 says:

      Ralph has it right. Case law is where a lot of these things are defined. Here in Texas we had a similar statute that used the term Traveling. I believe case law had determined that Traveling was defined as crossing through 2 counties.

      YMMV

    2. avatar ThomasD says:

      In a common sense world a judge faced with a test case would invalidate the entire statute based upon this vague and undefined verbiage, thereby forcing the legislature to fix their mistake.

      However, given the state of todays judiciary I suspect this would not be the case. I would bet that the judge would either choose to ignore the whole pesky phrase of the exemption and find the defendant guilty, or usurp the role of the legislature and supply his or her own interpretation of the meaning of the word journey.

  8. avatar Daniel Zimmerman says:

    Bowing, then, to your superior legal knowledge, how are cops/prosecutors supposed to apply the law? Is it a legal Rorschach test where everyone looks at it and tries to divine what they think it means?

    Wouldn’t an interpretation from the AG be preferable to a free-for-all?

    1. avatar Ralph says:

      Dan, the answer is no, since the AG’s opinion would carry no legal weight at all. It would be one guy’s personal opinion. That makes it a potential albeit unintentional trap for the unwary. The AG could change his mind, or there might be a new AG who thinks the old AG’s opinion was bushwah.

      The legislature made this mess. The AG is a law enforcement official, not a law making official, so he has no power to clean it up. The courts do. So if the legislature doesn’t do the right thing, then someone may be arrested, there will be a trial and a judge will decide what’s what. That’s the way the system works. Remember SCOTUS’ debate over the phrase “keep and bear?” Well, in the same way, the Arkansas courts will have to grapple with the word “journey.”

      I don’t know the players, but I think that Sen. Files went to the AG to set the stage for the legislature to act. Sen. Files can now make a strong case to his bros that nobody knows what this law means, so it has to be addressed before the courts f^ck it up even more than it already is.

  9. avatar Mike says:

    While it would be preferable for the legislature to precisely define what they mean by “journey”, the attorney general is right, because when it comes to undefined terms, courts generally apply the “plain meaning rule”, i.e. words have their ordinary/dictionary meaning, absent some evidence of specialized usage or that it is a term of art.

    1. avatar Ralph says:

      Mike, you are right, but it won’t work in this case. The dictionary defines “journey” as “an act or instance of traveling from one place to another.” But that cannot be what the legislature meant in this law, because the paragraph makes it illegal to carry in a car.

      Remove the word “journey” and substitute the definition. Then to paraphrase in English, the law would say “it’s illegal for a person to carry a weapon in a car unless the person is traveling from one place to another.” That would make it illegal to carry in a car unless the car is moving, which wouldn’t make sense. So we’re back to square one

      Somewhere in the legislative history, there may be an answer to this question. Still, it’s fair to say for now that the legislature humped the bunk and needs to fix it.

  10. avatar Roy Hill says:

    The “journey” provision predates CCW permits by decades.

    The attorney I hired to cover the legal part of the Arkansas CCW classes I teach always points out that “on a journey” has never really been defined and that there are several seemingly-contradictory court decisions about what is a journey is or is not.

    If you have a valid CCW permit, the “journey” provision doesn’t apply to you.

    If you are carrying without a permit, then the journey provision applies to you, maybe, possibly, depending.

    It’s a total mess for folks who want to carry without a permit.

  11. avatar Steve Jones says:

    Great article, Daniel! And lots of good comments on here, too. One point on what Ralph said about ‘no case law’ – There is previous case law, and he quoted it in his official answer to Senator Files, after he turned down the request. And, Ralph, you were correct in what you said about setting the stage for the legislature. This now helps Arkansas lawmakers know how bad this law really is. Here is another article on it:

    http://www.examiner.com/gun-rights-in-fort-smith/arkansas-attorney-general-refuses-to-clarify-gun-carry-law

  12. avatar Dogman says:

    “Then to paraphrase in English, the law would say ‘it’s illegal for a person to carry a weapon in a car unless the person is traveling from one place to another.’ That would make it illegal to carry in a car unless the car is moving, which wouldn’t make sense….”

    ‘Bout as much sense as the way the law is written at present.

  13. avatar Wendy Weinbaum says:

    As a Jewess in the US, I would say a “journey” is any trip that involves crossing a county line!

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