Arkansas passed ACT 746, which went into effect on August 16th of this year, (2013). The act effectively legalizes constitutional carry in Arkansas because it changes the definition of what constitutes the illegal carry of weapons. The old law didn’t require any intent; the new law makes carry of weapons illegal only if the carrier has the intent to use it illegally . . .

Attorney General Dustin McDaniel, a Democrat, promptly issued an opinion that the new law does not allow open carry. The opinion is nicely dissected by Steve Jones here. Essentially, the AG dodges the real issue, never addressing the key part of  the law which deals with intent. In order to educate the public about the new law, Second Amendment supporters in Arkansas have been holding open carry marches, defiantly carrying in public with the cooperation of the police to show that the law has, in fact, been changed.

Now the information is percolating into the consciousness of the local media in Arkansas. From katv.com:

The act is concerning county prosecutors across the state. The act says:

“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.

Faulkner County Prosecuting Attorney Cody Highland told Channel 7 News that there is a concern law enforcement could have issues proving someone with a gun is intending to use it “unlawfully.”

“The law as passed makes it very difficult if not impossible to ascertain the intent of someone who is attempting to unlawfully deploy a weapon against another person so the practical effect is a substantial change in the law,” Highland said.

It’s worth noting that the state that has the oldest uninterrupted exercise of constitutional carry in the nation, Vermont, has similar wording in its law concerning the carrying of weapons.

A person who carries a dangerous or deadly weapon, openly or concealed, with the intent or avowed purpose of injuring a fellow man, or who carries a dangerous or deadly weapon within any state institution or upon the grounds or lands owned or leased for the use of such institution, without the approval of the warden or superintendent of the institution shall be imprisoned not more than two years or fined not more than $200.00, or both.

Constitutional carry is legal and now being recognized in Arkansas. It is just happening gradually.

 

©2013 by Dean Weingarten of Gun Watch: Permission to share is granted when this notice is included.

47 Responses to Constitutional Carry Coming to Arkansas..Whether the AG Likes it or Not

  1. There would be no point of contention if the legislators in Arkansas had written their new law in English. But when something is written in Arkansese — a language as dense and undecipherable as ancient Greek — it takes an Aristotle to figure out what the definition of “is” is.

    • Ralph…first off not a dense language. Just a bunch of dense, self appeasing politicians. The gentleman(use the term loosely) wrote this piece of legislation to be as dense as possible to attempt to appease both his constituents and the governing DemoRats. McDaniels is an Ass. Plain and simple. Napoleon complex in a fat ass waste of oxygen. Him and the Director of the Arkansas State Police both feel that a Bloodbath upon the streets, and the “wholesale slaughter of police officers would occur if the good people of Arkansas, those with and without a CHCL, were given the option to open carry.
      Alas our Demorat Governor signed this into effect and then realized what he had signed! Oops!!
      Still vague and unfortunately McDumbass thinks his opinion is law.
      Yes we are working to vote the dickheads out as quickly as possible. If you really want the best interpretation please talk to Steve Jones. He is the best versed person I know in This state for 2nd Amendment related laws.
      Steve has helped us with various rallies and so forth and has done much to help us get closer and closer to true constitutional carry.

      • @speedracer5050, I have friends in Arkansas (all of them gun-owning professionals), and your comment completely matches what they have told me, thought-for-thought if not word-for-word.

        Keep up the fight. You’re winning.

      • Voting the Democrat, Attorney General Dustin McDaniels, out is a bit of a moot point from what I understand. He’s term limited, and can’t run again. Green Party candidate Rebekah Kennedy was his last competition, but she didn’t make it… probably for the better as the Green Party is considered further left than the Democrats. We need someone more like the guy from Fort Smith who wrote the modification to the existing law that has brought this to us.

        Now if we can only get that idea out of their head that it only applies to the county in which you reside, and not for the whole State. (i.e. they want us to believe that if, for example, you live in Yell county, you can’t carry w/o CHL, into Haskell, Van Buren, Crawford, Sebastion, etc. counties)

        • “before ole Billy does, Dirk”

          FIFY.

          Without the comma, that phrase takes on an entirely different meaning. Kind of like removing the commas from “I like cooking, my pets, and my family”.

  2. “The old law didn’t require any intent; the new law makes carry of weapons illegal only if the carrier has the intent to use it illegally”

    This statement is closer to the most reasonable ‘gun control’ measure I’ve seen in a while. However, if the statement was changed to the following, it would be perfect, IMHO.
    “carry of weapons illegal only if the carrier USES it illegally”
    That punishes an actual criminal act. Intent, when used indiscriminately in law, opens too wide of a door for interpretation and subsequent abuse by government. A good example is an incident that occurred recently in Ohio. A shoplifter was stealing knives. Upon being caught, the thief immediately told of the knives upon his person but did not attempt to use or even touch them. Initially, the prosecutor considered charging the thief with use of a deadly weapon and other piled on charges (carrying a concealed weapon, etc); a count for each of the knives. Thankfully, this having occurred in a rural setting, the prosecutor decided that it wouldn’t make sense to pile those charges on under those circumstances.

    • You’ve hit on the crux of the problem (or lack thereof). When one tries to discern someone’s intent, one is trying to either foretell their future or read their mind. Neither works well in most cases.

      • Intent could be determined by actions. When a guy straps up and tells his friend “I’m gonna kill so-and-so” or “I’m gonna rob that bank,” his intent is pretty plain. Yes, those are blatant examples, but they show that intent doesn’t depend exclusively on police being able to read minds. There are other examples of behavior manifesting intent that would be much more subtle.

    • Intent is very important legally. It is the difference, e.g., between murder, justified homicide, excusable homicide, negligent homicide and manslaughter (mens rea differs, not the actus rea). In all cases a man is killed. In justified homicide, the killing was in accord with the law and intended as such (self-defense is a prime example, but also say the guy who performs an execution). Even if an innocent party is killed (e.g., bullet misses bad guy, hits bystander) the intent makes the difference (transferred intent). Whereas in excusable homicide, the killing was accidental and not the result of any mens rea (that is, no criminal negligence, recklessness).

      Or the difference between shoplifting and burglary. If I enter a store and spot something I want and decide to steal it then, that is one thing. But if I entered the store with the purpose of stealing, then it is burglary. The only way to charge a person with burglary when his entry was lawful, is if intent can be proven. An example, a sad one, is 50 years to life for a shoplifter (took $150 worth of videotapes). What should have been petty theft, was felony burglary be he entered two different Kmarts, thus showing intent.

      It seems to me this would be treat analogously to burglary on one hand (you need to prove mens rea through aspects other than merely carrying the gun), and like felony is possession on the other, practically it will be an added charge, not a standalone.

    • I still don’t understand what intent had to do with it. Is it just so we can charge him with two crimes (e.g. murder AND carrying a weapon)? Why not just charge him with the actual crime? Why should carrying a weapon be a factor at all?

      • I used to think along the same lines. The rub comes in when determining charges between things like shoplifting, burglary, and armed robbery. For example, I am in Walmart to grocery shop. My first stop is the bakery to get a self-serve doughnut to enjoy while I *groan* fulfill my grocery list. As is rarely the case, by the time the grocery cart and I arrive in the checkout, I forget all about the doughnut. If caught and charged, should it be shoplifting, burglary, or armed robbery because my gun is on my side? Of course, it’s a simple mistake but, if charged at all, it should be shoplifting because the weapon played no part and my intent was not to rob Walmart of a doughnut. For the most part, I agree with you. But, if I used the firearm to somehow intimidate in order to facilitate the crime then it changed the nature of my actions by the threat level posed. The gun doesn’t have to be in my hand to elevate the threat level, BTW.

        That’s probably a poor example but coffee isn’t running through my veins yet… I’m over a half an hour late on my daily routine this morning.

    • This is pointless. If a weapon is used in a crime, why is the crime itself not good enough? Why is murder, or bank robbery, or any other crime, worse if committed with a weapon? Why does the type of weapon matter? Dead is dead, robbed is robbed. If I imitate a weapon with my finger in a pocket, is the bank any less robbed? Am I any less threatening and any less worthy of lethal response?

      • I can’t say as I completely disagree with you and, indeed, spent most of my life thinking precisely the way you have expressed it. However, when someone threatens to take my wallet but doesn’t seem to have the means to take my life, that’s a different situation in the moment from the thief threatening, with obvious means, to take my wallet AND my life. Was it armed robbery or was it robbery mixed with attempted murder? IDK, the answers don’t seem as clear cut to me after these years of experience as they were decades ago.

        Again, I’m not firm on my answer here. I’d rather see weapon charges only if the weapon actually came into play; i.e. pointed directly at the victim… not in a pocket, holster, or even in the hand. To me, as is to many I’m sure, a firearm is only a tool and no different than hammers, saws, pliers, screwdrivers, or even work boots.

  3. It should be the States responsibility to prove intent.
    You cant say someone intended to do so and so without some sort of concrete evidence to prove it.
    Let the DA earn his paycheck for a change.
    It should be this way in every state.
    Its my god given right to have whatever weapon is at my disposal at the time I may have to defend myself or a loved one. Or prevent a felony on another.
    Not a privilege afforded me by a 2 cent piece of plastic. Paid for by myself to the state to do so.

    • They do… but you can get jammed up on probable cause, which is quite a bit less than “proof beyond a reasonable doubt.” You can get delayed on reasonable suspicion, which is basically a step above ‘I got a feeling” in that it only requires some sort of reasonable articulated evidence with regards to a suspected criminal activity.

      • “You can get delayed on reasonable suspicion, which is basically a step above ‘I got a feeling” in that it only requires some sort of reasonable articulated evidence with regards to a suspected criminal activity.”
        Correct. For a good current example of that in action, see the NSA and the FISC.

      • This I know.
        You can literally get pulled in for breathing the same air these days.
        Some parts of the county for even less.
        Yet another reason for living in Florida………………..for now.

    • It should be the States responsibility to prove intent.

      It is. The state must prove every part of the crime, and prove it beyond a reasonable doubt. “Probable cause” and the lesser “reasonable suspicion” are much lower standards.

  4. The change in the law does NOT make ascertaining intent more difficult. Rather it requires that intent be ascertained. The difficulty of determining intent was not a result of the law but rather a preexisting condition inherent in the problem of intent.

    That having been said the legality of carrying a weapon has been reaffirmed generally excepting a situation in which one intends to use it unlawfully. Since assaulting someone with a weapon was already illegal this seems to do little either way in making one more or less likely to assault with a weapon. What it does do is allow for arrest for unlawfully carrying a weapon in the event that there was sufficient evidence that one did so with the intent to unlawfully cause harm, such as threatening to kill someone with said weapon.

    I’m not knowledgeable with the specifics of Arkansas law but I heavily suspect that threating to harm another with a weapon was already illegal in the first place. If this is true the prohibition on carrying a weapon with criminal intent merely adds an additional charge for engaging in what was already feloniously unlawful activity in the first place. In other words it seems only to affirm ones right to carry a weapon so long as one is not engaged in (other) criminal activity at the time.

    Rather than focusing on the difficulty of determining intent, the police in Arkansas ought to focus on intervening in those situations where one is committing other violations of the law and happens to be armed. This essentially takes intent out of the equation since if sufficient cause is evident to allow arrest for the other criminal activity there is de facto evidence that any weapon the accused was in possession of was possessed with criminal intent and thus contrary to the law.

    Or, in short form, the ‘determination of intent’ argument is a red herring propagated by someone being intentionally obtuse while attempting to subvert the law to suit their agenda. It’s certainly not something that an AG ought to engage in and furthermore ought to be grounds for removal or even disbarment.

  5. Why is all the media coverage around the “gun” portion of the law, and completely avoids the “knife” and “club” portion? I can have a knife in my pocket, and a baseball bat in the trunk and that is just fine, but heaven forbid i have a glock in a holster.

    • This is very true. I attended concealed carry class in arkansas two weeks after this law passed. the teacher of the class still said that unlicensed carry of guns was illegal (i believe technically he is wrong) However, I feel confident in carrying any other weapon I like, because I have literally handed local police (friends) some of the knives I own and asked if they are OK to carry (including fixed blades) so no problems there. The problem seems to be when a gun is involved.

      as a resident of arkansas i do not feel confident enough about the law to carry a gun without license (coming in mail soon), even though they have done open carry demonstrations a few miles from my house. I don’t think there is enough support yet like there is over in Oklahoma.

      edit – Oh, and the AG in arkansas is a piece of shit. he can also go shove a (insert creative noun here) up his ass.

  6. This discordance from the AG can be readily resolved: pass a law removing prosecutorial immunity. When prosecutors have to start following the law themselves – and be subject to civil suit if they don’t – this kind of arrogance will quickly disappear.

    • Sixpack70,

      You know, of course, that police officers, prosecuting attorneys, judges, the dog catcher and most other civil servants are bonded, something they do not want you to know. If they break the law, they can be caused to not only be taken to court, but to pay monetary restitution to the citizen(s) affected by their negligence, malfeasance, abuse of power or whatever the offense is. If they do not pay, their indebtedness can be turned over for collection. The law is the law. Two of the most difficult concepts to “prove” are (1) intent and (2) causation (as in medical malpractice cases). So it may not be so GF Dustin if he tries to assume legal power which he does not, in fact, legitimately possess given the fact that Dustin is part of the Judicial and not the Legislative nor Executive branches of government. Fortunately, despite his history of making ill-informed, confusing (and confused), illogical, embarrassing, ridiculous, unfortunate remarks over the years, he does not make laws for the people of Arkansas, no matter how much he wants to. He made himself ineligible to run for Governor on the basis of proven, demonstrated moral turpitude. His job is to enforce laws, and to do so in accordance with both the letter and the spirit of the law. Laws are composed of symbols, and symbols are interpretable. If I say the word “car”, what kind of “car” am I referring to? There is a lot about the characteristics of language behavior that Dustin is obviously ignorant of, which is uncharacteristic of someone with a legal education and background, who deals daily with words. We’ll be better off when Dustin, and those who think, talk and behave like him, are no longer involved, even remotely, in our lives. In my estimation, Dustin is just one more pompous, arrogant, moral hypocrite. Arkansans are capable of placing more professional, deserving and capable people in public office.

      • I believe all law abiding folks should be allowed to go armed with whatever legal weapon they choose, open or concealed. My point is concealed offers the protection of you surprising the perp. if you happen to be among a group of open carry folks you all are a deterrent. I never chose to single handedly charge several well armed enemy. Common sense should prevail.

        Uniformed officers are required to be open carry but that has never been a deterrent to the armed hood who executes the officer. We had one stop a car at 1:00 a.m. for running a stop sign. Officer approached driver’s down window and was met with an automatic weapon. Killed him on the spot. A uniformed officer deters minor hoods. the present death rate for uniformed officers nationwide does not suggest even armored vests will always keep you alive. Much less open carry.

        What prompted my original thought. I entered a Cap’t D’s restaurant around 9 pm. One white male sitting alone, right side in view with a holstered pistol. Had I meant to rob the place I’d have dealt with him first and added a gun to my armory. Had it been concealed he might have taken me out.

        Timing is a life saver. If you wait on me to make a move, i.e., show a gun intending to commit a crime, it will take you 1/4 second to react. it takes my hammer fall 2/3rds a second to fire. so add your 1/4 second to react plus your 2/3rd second hammer fall and your dead before you can fire. If I am within 10 ft of you when you point the gun at me I will disarm you before you can fire.

        Ask any well trained officer or FBI. They practice this as I did. Even at 82, I proved to my wife. I moved 30 ft and disarmed her pointed gun before she could get the trigger pulled enough to engage the hammer. I convinced her that as the perp approaches 31 ft fire until he’s dead. My “Deadline” is 21 ft, 7 yds. if it is in your holster, 50 ft. an officer with a holstered gun, perp at 21 ft will put a knife in his throat before he can draw and fire.

        These are easy timed tests to run. Try it. or ask a young cop. the new ones train to this. in ’53 we didn’t. I learned from an FBI agent.

  7. “Faulkner County Prosecuting Attorney Cody Highland told Channel 7 News that there is a concern law enforcement could have issues proving someone with a gun is intending to use it “unlawfully.”

    Yeah, especially if someone with a gun is not intending to use it unlawfully.

  8. Just a few thoughts on Arkansas’ Act 746 and the Right to Bear Arms, which is protected by the U.S. Constitution and The Arkansas State Constitution. Since Act 746 has gone into effect I have been one to Open Carry, because I truly believe I have that civil right. By doing so, it is not my intent to cause alarm to anyone. It is for my own self protection and yours, if need be. Many do not understand the law. Here it is… word for word.
    ************
    Arkansas Code § 5-73-120 Carrying a weapon.

    (a) 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.

    **************
    So, as long as the person can legally own a weapon and has no intent to use it against a person
    unlawfully, it’s perfectly legal.

    Most people would think that I would be antigun, if they knew my family history. Without going into much detail, I will say that my sister was killed by her husband with their 3 small children at her side and moments later he took his life.
    Still, to this day, I do not blame the tool he used. Yes, a hand gun is a tool.

    I was a single parent of a troubled teen. I recognized the possibilty
    of a problem and removed all firearms from my home, unlike many of todays parents who are not involved in the nurturing of their children and teaching them the value of a human life. My child grew up without causing any problems
    because I chose to be there and put positive people in his life.

    I took an Oath to Uphold and Defend the Constitution of the United States
    when I joined the US Army, in 1975 at the young age of 17, and I still
    respect and honor that oath some 38 years later. I have an ancestor who was a delegate from the State of North Carolina who signed the Constitution. I can only imagine him and his fellow delegates rolling over in their graves today, as so many try rewrite this great document.

    WAKE UP PEOPLE! It’s NOT the GUN, nor the hammer, nor the rock that Cain killed Able with. Those are only tools used to do harm. The problem lies in the person with bad intentions.

    Wayne Helms
    Fort Smith Arkansas

  9. Open carry is a bad choice for most, other then hunters in the field. If i am the bad guy intending to commit a robbery, let’s say at a restaurant or a gas station and i spot you with a unconcealed gun, guess who i’ll take out first. The value in concealed carry is the ability to surprise. so open carry may be a political point re the 2nd Amendment but it is very poor personal policy.

    • That doesn’t appear to be fact. There are many people open carrying every day and reports of them being ‘taken out first’ aren’t to be found. Do criminals often take out police as they open carry also? Or, is it more likely that a criminal will quietly re-think the proposition and seek softer targets? Both concealed and open carry have their weak and strong points but I’d rather avoid having to shoot than to ‘surprise’ a criminal and have to discharge my sidearm. Did you happen to read the story a good while back about a Waffle House robbery deterred by the open carriers eating?

      • I have not heard/read of any open carry individual in a gun fight to suppress a crime when the perp(s) could first see him. I am aware of a number of conceal-carry folks surprising a perp.

        Yep, police officers have been shot by a perp they did not see. One happened here in Nashville at a pizza joint as he was waiting on his order

        I have never known of a bank holdup deterred by the lone armed security guy in uniform. He merely becomes a bullet catcher. I am sure no sane perp is going to pull a gun in an area with a number of open carry folks in plain sight. sure, THAT is a deterrent.

        I been around a very long time. did a stint on LAPD back in ’53, have always carried, law or no law, at anytime I felt it wise to do so. But I would never advertise I’m armed.

        • I really don’t wish to surprise a criminal unless it’s absolutely necessary. I’d much rather be a deterrent than take a life if possible. We both know that crimes deterred often go unreported.

          https://www.usconcealedcarry.com/ccm-columns/the-ordinary-guy/robbery-what-robbery/

          I’m not arguing that one is better than the other in every circumstance (OC & CC) and I made that clear enough in my previous comment. Individuals ought to be free to choose if they OC, CC, or both. I have very little doubt that my OC sidearm has deterred criminal issues from presenting before. I also carry concealed at times. Often, I OC with a CC BUG.

          So, what’s your point here… are you suggesting that people should not be allowed to open carry or are you merely expressing your opinion that concealed carry is tactically superior to open carry? If it’s the former then I completely disagree with you. If it’s the latter then I can only say that I’ve found utility in both manner of carry and desire that we all remain free to choose.

          BTW: Why don’t uniformed police officers carry concealed? Why do they open carry their main sidearm?

  10. John, I replied to u but it somehow got posted up above in the argument about the AR AG making law. scroll up a bit.

    • I found it. Thank you for pointing it out.

      Thankfully, we don’t disagree about people being able to have the choice. For me, that was the important point and probably the only one that I’d disagree with you vehemently about if we had opposing views. As far as I can tell, the rest is about tactics. We disagree some but not really all that much. There is a comment or two under the recent story here on TTAG about the robbery where the guy closed the distance and took the criminal’s gun. (He was slow, slow, slow at it but luckily didn’t seem to have a committed shooter in front of him.) We trained the way that you describe above. When I read what you wrote I momentarily thought I might have been reading my own post from the other thread! I don’t disagree with you at all about closing distances and disarming. My father taught me very young and I continued training in adult life.

      I guess, the summary of my remaining point about OC & CC is that I think it’s important that criminals see OC in public AND are aware that anyone might CC. This way, they don’t really have a clear idea of who might or might not be armed. If everyone CCs then it seems to me like the criminal and non-criminal public at large forgets the utility of firearms in law abiding society AND the constant presence of law abiding armed citizens. (I’m tired, not enough coffee yet this morning, and might not have worded that well.)

      “I proved to my wife. I moved 30 ft and disarmed her pointed gun before she could get the trigger pulled enough to engage the hammer. I convinced her that as the perp approaches 31 ft fire until he’s dead.”

      LOL! Why do we seem to put our wives through this demonstration? Perhaps that’s one of the many reasons mine is the former Mrs. The last time I used her for demonstrating this, a friend was at the farm and we were talking about what training was useful to me over the years. The result was similar to what you described. She couldn’t pull the trigger before she was disarmed. Unfortunately, I was very tired from a long day of work and had accidentally taken her down a little more rough than I intended. She was alright but it was the last demonstration she volunteered for. Under that one article here, I described it and, if memory serves, it was very similar to your experience. IMHO, every person who is serious about self defense should learn how to do it.

      • Always gentle take-away with wife. my point was to convince her distance is important. My opinion varies a bit from yours on OC. i really think it is a bad idea unless the person is in good physical shape, trained how to respond to an attempt to take the gun from the holster. The old LAPD holster, circa 1950’s, was a clamshell that required a finger pressure 90 degrees to the pistol before it could be removed. it was pretty well “attack proof,” Also took some getting used to by me.

        Being Libertarian to the core, i always oppose any law restricting the actions of folks that are not violating anyone’s rights to life, liberty & property, I support what many see as Draconian measures to prevent violent crime, i.e., send them to the crematory. Certainly oppose spending taxes to feed & house the violent criminal.

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