AK AG Leslie Rutledge (courtesy swtimes.com)

On August 22, a man named Richard Chambless was arrested in Bald Knob, Arkansas, a hamlet north east of Little Rock, thrown in the klink, and on the 26th, was sentenced to one year of probation and ordered to pay a fine of $2,160.00. Why? For the crime of openly carrying a handgun into a local McDonald’s restaurant, where he stopped to get a drink.  According to Arkansas Code § 5-73-120 . . .

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….” Persons who have an Arkansas Concealed Handgun Carry License (or have a license issued by another state,) can carry a concealed firearm, but the Natural State did not license the ordinary citizenry to openly carry a firearm. It also lists a number of exceptions under which possession of a handgun is permissible, such as: a person being on a “journey” beyond her home county, or being a law enforcement officer acting in the scope of his official duties.

At least, that was the case until 2013, when the Arkansas Legislature passed Act 746, intended to clarify certain aspects of Arkansas firearms law. Despite his conviction, Chambless claims that Act 746 has turned Arkansas into a permitless open carry state, and intends to keep up the legal fight.

And now, it seems, Arkansas Attorney-General Leslie Rutledge agrees with him.

Rutledge, a Republican, was asked recently by three members of the state legislature to issue an opinion on Act 746 because the law “created some confusion among both the people…and law enforcement in Arkansas.” Specifically, the legislators wanted to know whether Act 746 “permits a person not on a journey to openly carry or carry concealed a handgun or other weapon in public without violating the criminal offense of carrying a weapon, § 5-73-120, so long as he or she has no ‘purpose to attempt to unlawfully employ the…weapon against a person?'”

Ms. Rutledge’s answer was in the affirmative — because of the changes wrought by Act 746, a person may now openly carry a firearm while in public, or while in a vehicle, without violating Arkansas firearms law, provided she does not have the intent to “unlawfully employ the handgun as a weapon.”

In my opinion, Act 746’s amendments to § 5-73-120 mean that (1) the statute only criminalizes a person’s “possess[ing] a handgun on or about his or her person, in a vehicle occupied by the person, or otherwise readily available for use” if he or she simultaneously has the intent “to attempt to unlawfully employ the handgun…as a weapon” against a person, and (2) this unlawful intent may not be presumed simply because that person possesses a loaded handgun.

In addition, Ms. Rutledge makes it clear that Arkansas’ new Constitutional Carry status is imperfect – it only applies to openly-carried firearms, not concealed firearms:

Nothing in Act 746, § 5-73-120(a), or this opinion is intended to suggest a person may carry a concealed handgun in public without a properly issued concealed-carry license. In fact, except during a journey, it is likely that the Arkansas Supreme Court would allow the presumption that a person who has flouted the concealed-carry regime in Arkansas law by possessing a concealed handgun without a concealed-carry license has the requisite unlawful intent for a violation of § 5-73-120(a).

Point 4 requires additional explanation. In my opinion, a person may not lawfully carry a concealed handgun in public without a properly issued concealed-carry license. I believe this necessarily follows from the concealed-carry licensing scheme that predates Act 746 and that, in my opinion, was unaffected by Act 746. The licensing requirement is recognized in the “concealed handgun” exception under § 5-73-120:

It is permissible to carry a handgun under this section if at the time of the act of carrying a weapon….[t]he person is in possession of a concealed handgun and has a valid license to carry a concealed handgun under § 5-73-301 et seq., or recognized under § 5-73-321 and is not in a prohibited place as defined by § 5-73-306.

In other words: the Attorney-General appears to be saying that these changes have effectively turned Arkansas into a imperfect constitutional carry state – with unlicensed open carry and licensed concealed carry.

The AG doesn’t sound very happy about it, though. She stresses in her introduction (and in her Facebook post) that she does not encourage open carry. She even goes on to state that, even though the open carriage of a firearm is legal, that by itself may generate reasonable suspicion for an officer to stop and briefly detain a person.

[A]ny person who carries a handgun should be aware that a law enforcement officer might lawfully inquire into that person’s purpose. Determining culpability or potential culpability under Ark. Code Ann. § 5-73-120 is initially a matter for law enforcement following guidelines that routinely apply when investigating a misdemeanor involving the danger of forcible injury to persons. A law enforcement officer may stop and detain any person reasonably suspected of violating § 5-73-120 if necessary to identify the person or determine the lawfulness of his or her conduct.

Whether an officer has reasonable suspicion will depend upon a number of circumstance-specific factors. Some of these factors are recounted in Ark. Code Ann. § 16-81-203 (Repl. 2005), including: (1) the demeanor of the suspect; (2) the gait and manner of the suspect; (3) any information received from third persons; and (4) the suspect’s proximity to known criminal conduct. While merely possessing a loaded handgun completely on its own is not enough for reasonable suspicion of a violation of § 5-73-120(a), possessing a loaded handgun in combination with just one additional factor may, depending on the circumstances, be enough to create reasonable suspicion of intent to unlawfully employ the handgun as a weapon (and thus reasonable suspicion of a violation of § 5-73-120(a)).

In other words: just because what you’re doing is perfectly legal, police can still stop you if you look funny. (Though note that she didn’t just make that stuff up about ‘gait and manner’ – that was directly from the Arkansas Code.)

A word of caution: although Attorney-General Rutledge’s opinion is significant, and may indeed impact how the law is interpreted by law enforcement, prosecutors, and judges, it is non-binding, and hardly the same thing as a court decision. In fact, the previous Attorney-General, Dustin McDaniel, was asked in 2013 whether the ‘journal’ exception in Act 746 would permit a person to engage in unlicensed open carry as long as he was journeying beyond his home county; his answer (prepared by Deputy Attorney-General Elisabeth A. Walker) was a resounding “no”.

The answer to your question is “no,” in my opinion. A person does not fall within Act 746’s “journey” exception to the statutes relating to possession and carrying of a handgun simply because the person has left the county in which he or she lives…. I do not interpret Act 746 as authorizing so-called “open-carry”. To the contrary, the journey exception applies only to “travel beyond the county in which a person lives” — a narrow range of activity inconsistent with the concept of “open carry”…. Generally,…Act 746 does not in itself permit a person to possess a handgun outside of his or her vehicle or other mode of transportation while on a journey outside his or her county of residence.

After looking at Act 746, I don’t find Mr. McDaniel’s opinion (as drafted by Ms. Walker) persuasive; it seems that he ignored Act 746’s intent component, and find Ms. Rutledge’s opinion much more persuasive. That said, the wise gun owner residing in or journeying through Arkansas will recognize that the law is unsettled until a court says it is, and even then, it may still enjoy some adventures afterward.

So unless you’re the kind of fellow who enjoys being on the bleeding edge, and doesn’t mind a week or two in the county jail, you might want to hold off on the open carry thing for now. As Mr. Chambless himself put it: “Some people are just set in their ways and aren’t used to seeing guns out in public.” And some of those people are government officials.

Bald Knob’s chief of police, for instance, despite the publicity and deluge of protest comments over the arrest of Chambless, <a href=”
http://www.nwaonline.com/news/2015/aug/30/after-arrest-gun-law-still-fuzzy-to-law/?news-arkansas”?still doesn’t get it:

“It’s hard for me to understand that the law was intentionally made for anyone to tote a gun around,” Balentine said. “What would the purpose of having a [conceal and carry] permit, what would be the purpose of background checks?… Open carry would mean anyone could tote a gun.”

Indeed it doesn’t, as someone familiar with the law could attest. But ignorance related to firearms laws is a common thing with petty bureaucrats.

DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.

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43 Responses to Arkansas Atty-General: Open Carry OK in The Natural State

  1. Translated:

    “There are you folks happy now, the law was changed like someone promised. But don’t actually test it out or our enforcement of imagined threats could be inconvenient, annoying and hell maybe even brutal and permanent.”

    Yay us I suppose.

  2. I live in Arkansas and have a Concealed Handgun License. I “open carry” on my farm, my property when I’m working or taking care of things. I support any and all forms of the carrying of a weapon…that doesn’t necessarily mean that everyone SHOULD or that I WILL. Like any place we have our share of idiots who think that they ought to run to the Dollar Store with their $499 Romanian AK strapped to their back…. It all boils down to common sense and respect (for others AND for the weapon that you carry)…because carrying a weapon is a GREAT RESPONSIBILITY not just a RIGHT.
    So….CARRY on!

    • The Bill of Rights isn’t a right, and you are the arbiter of what it means. Gotcha. Letting others set the bar for “common sense” lets those same people throw a rope over the bar for people like you and me. Its a right or it isn’t.

      • ” Letting others set the bar for “common sense” lets those same people throw a rope over the bar for people like you and me. Its a right or it isn’t.”

        Man, that is beautiful.

        Very well said.

  3. “Open Carry OK in The Natural State” grabbed my attention. But anticipation was crushed upon discovery that nude carry had not been endorsed by Arkansas officials.

    • One might argue that, Since a gun belt is a form of apparel, technically, you’re not nude…

      That’s my story, and I’m sticking to it..

    • “Natural State” hit me the same way.

      Boy, was I disappointed as a college kid when I found that you weren’t allowed to go in the natural state in the Natural State.

      • Try San Francisco. AFAIK, nudity is still practiced at Baker beach and some other Federal lands in SF. No law prohibiting it I was told. Was amused to see nudists covered in goose-bumps since the SF beaches are typically windy, chilly, and foggy in summer.

        Meanwhile non-nudists beach visitors are clad in parkas. Californians tend to bundle up more than Nanook of the North when temps drop below 65. As a former Chicagoan, I still find it amusing.

        • OK, it’s off-topic, but as a former resident of South Dakota I am also familiar with the actual meaning of the terms “Cold” and “Winter.” Now that I live in San Antonio, TX, I am regularly amused at the way local folks dress when the temps fall below about 50. It is not uncommon to see people wearing a parka over shorts and sandals. I suspect there are folks down here who don’t actually OWN any long pants! Oh well, it doesn’t matter much since this area only gets about one week of “Winter” annually, typically around the third week of January. Sometimes it even freezes!

  4. From one concerned open carry to others, be very careful.

    Cops like to try and hold court in the street at gun point, and that open carried gun is the only drop gun required to prove officer safety.

    The Crawford guy in Ohio was executed at walmart for a open carried bb gun.

  5. Yikes! I had a guy from Texas(on FB) tell me to move there-away from Illinois. I can move a mile away to Indiana and open carry NOW. No daily bloodbaths. Yeah ya’ might scare the sheep. And I thought the south was “GODS country”…at least this poor guy didn’t get a felony-BTW it IS a right Bobby…

  6. When States distort the US Constitution this is the outcome, total confusion and a deteriorated Right. Why all the States can’t simply respect the Constitution is beyond me.

  7. Chief Balentine said “Open carry would mean anyone could tote a gun.”

    Yup, that’s right, Chiefie. Just like a badge means that anyone could act like an assh0le and get away with it.

  8. US vs Deberry states a firearm where legally carried does not Constitute reasonable suspicion for a stop.

    Nevermind the political correctness of open carrying. Was it legal at the time when Chambliss was arrested?

  9. Excuse me (barfing) … while Ms. Rutledge may claim police can detain someone for carrying a firearm openly and having an “unusual gait”, the United States Supreme Court has already weighed-in and defined Terry stops: in order for police to detain and question someone, the responding police officer must have a reasonable, articulable suspicion that a person-of-interest has committed a crime or is about to commit a crime. Carrying a firearm openly is NOT a crime. Thus carrying a firearm openly CANNOT possibly constitute “reasonable, articulable suspicion”. Furthermore, an “unusual gait” CANNOT possibly constitute a “reasonable suspicion” of intent to commit a crime.

    Who wants a $20k to $100k payday? Go open carry in Arkansas and dare the local police to arrest you for it. They will pay. And after they pay, demand that the United States Attorney General prosecute the arresting police officer/s under U.S. Code Title 18, Section 242 Deprivation of Rights Under Color of Law … and send them to prison a few years.

    Where do these attorney’s get their law degrees? From a CrackerJack box?

    • We were having the same discussion on Texas open carry. That ruling in Ohio on open carry not being probable cause where legal or wherever doesn’t directly apply to us yet because we aren’t in the same district. We apparently screwed up on the law too. Open carry is illegal with the affirmative defense that its legal when you have a CHL. Short story, we’ve got no protection against a cop asking for papers when open carrying.

      • I think the Texas legislature may be in for a rude awakening. United States Appellate Courts have ruled that a state can ban open or concealed carry but not both. And while Texas will allow both open and concealed carry with a license (as of January 1st, 2016), I believe Texas law is in jeopardy because Texas law requires a fee to keep and bear arms outside of the home. This is obviously akin to a poll tax. The United States Supreme Court had no reservations whatsoever striking down poll taxes for the right to vote or permit fees to exercise free speech. They should do the same for our Constitutionally enumerated right to keep and bear arms.

        Of course what the United States Supreme Court should do and what they actually do is a whole different matter. Honor and righteousness have left the Supreme Court. They won’t even take cases that would resolve splits in the Appellate Courts to declare that we have a right to keep and bear arms outside the home, much less rule that states cannot charge fees to bear arms. If the Republicans can win the next presidential election and appoint two justices to the Supreme Court, we have one final chance.

  10. This speaks to the broader question though. Do you trust the AK strapped idiot at the dollar store less than the f-ing morons who are violating the Constitution and think it’s within their rights, or the purview of governmental authority to dole out rights.

    F-all of that.

    Your stupid a-hole neighbors needing jobs (your government) aren’t even good at the job(s) they’re selected for, it is absolutely abhorrent and dangerous to let them go getting creative on what they are supposed to regulate. We don’t need America if we have to continue to beat this crap back, and we don’t need a court or legislative system that constantly tells us tough sh_t. F-all that.

  11. The Chambless trial was a mockery of justice.

    The prosecution called several witnesses who stated that someone carrying a gun is scary, then the prosecutor concluded that was proof that Chambless was guilty of disorderly conduct.

    The Chief of Police said Chambless wasn’t carrying a “properly holstered” gun, therefore Chambless was guilty of illegally carrying a weapon. I guess.

    The prosecutor stated that there was no need to carry a gun into McDonald’s, essentially arguing that Chambless had to prove his innocence, not that the prosecutor had to prove his guilt. Improperly shifting the burden of proof?

    The judge first concluded that the law allowed open carry, but then said he was confused (rule of lenity should apply here), so finally concluded that Chambless was guilty of carrying a weapon and disorderly conduct and called Chambless’ behavior “physically offensive.”

    Unbelievable.

    Then the AG’s opinion was a 17-page rambling mess that throws CCers under the bus if they are outside of their home county and conflicts with 2013 law.

    Unbelievable x 2.

  12. Really this AG has screwy reasoning. You can carry a gun unlicensed in your car, but the minute you leave your car you’re violating the law because you are no longer on a journey.

    She concludes that once you exit your car you must OC if you don’t have a CC license, and states that if you exit your car and CC without a license, you are “presumed to be breaking the concealed-carry regime in Arkansas law by possessing a concealed handgun without a concealed-carry license” and you are now carrying with unlawful intent.

    That a cop can actually “detain” you to determine if you might be breaking a law.

    So much for everyone thinking that Arkansas has been a “constitutional carry” state since 2013.

    • Arkansas has been a Constitutional carry state since 1836 when they entered the Union.

      What we have today is the train wreck that we call our laws and injustice system.

      The real problem is that so few people have any real honor any more. So many people operate strictly based on what they want and they are more than willing to take what they want from other people if necessary.

  13. Th more they dance around with weird wording, the more necessary it becomes to cut all that fluff and eliminate the laws altogether. By it’s very nature, you can’t clarify bullshit.

  14. I apologize in advance, my reading comprehension is not fantastic. After reading the post, I wondered about crafting a law about intent. If the purpose of a law is to attempt to ameliorate the effects of unlawful carry/firearms violence by making intent illegal, how can intent be judged until after the event of a lawful action or unlawful abuse? Do they employ psychics? How can ill intent be determined, and prevented by a law predicated upon intent?
    It seems to me, that this is a premise to ascribe punishment after the fact, while not able to deter, yet touted as a deterrent.
    Again, sorry if I missed the intent of the law, and please correct me if I am missing the point.

    • This issue will be argued forever with no resolution. Originally the intent was “shall not be infringed”. Once you change that to “shall not be infringed but… it becomes a law instead of a right. In this case a law for the police to enforce on a whim and judges to make rulings based on a point of view rather than jurisprudence.

      Our founding fathers were at the genius level and focused on individual liberties. Not so much state legislators.

  15. Then why is it buried in laws that are ambiguous? As someone from this state, I don’t buy it. If it’s legal, fix your laws so that it’s clear and easy to understand.

    All laws should be clear and easy to understand. It’s when they aren’t that innocent people get in trouble.

    And even then, the way it’s currently worded, you have to be traveling “outside of your county.” Again, fix the wording.

  16. “It’s hard for me to understand that the law was intentionally made for anyone to tote a gun around,” Balentine said.

    You mean like…. the Constitution??

  17. For all of you who are railing on Ms. Rutledge, the current AK AG, first I have to say that you need to go back and reread her rulings, as well as much of what she said. As the author of this article pointed out; “Ms. Rutledge makes it clear that Arkansas’ new Constitutional Carry status is imperfect”. The author also points out that Ms. Rutledge did not make up the stuff about one’s gait ( uncommon_sense, this is directed at you). It is stated in the law. If you want to criticize someone’s interpretation then reread the former AG’s comments.

    I live in OK. We used to be a CC with a permit only state. A few years ago our Republican Governor signed the open carry act. BTW, she has her permit also. Now it has always been understood that “flashing” your gun is construed as a threatening act. The problem is if you are CCing and you move in such a way as to expose your weapon, i.e., reaching up to get something from a shelf thereby raising your shirt or vest or jacket, etc…you could find yourself in court. So, by passing the open carry, this no longer is an issue. Does the open carry act necessarily mean you should run around with your six shooter strapped to your side for everyone to see? Depends. I do some. Now I have friends and relatives who say this just makes me a target; If I find myself someplace where the deployment of my weapon becomes necessary then I am the first one the bad guys are going to shoot. I see it differently. If the bad guys see someone is armed then they are going to leave – fast. But common sense is crucial here. I know; their is nothing common about sense. Still…Consider the circumstances. I go to a church that allows CC, just not open carry. Why? Well, it does make some people uncomfortable. But, I can guarantee that if someone should interrupt our services with ill intent that they would find themselves surrounded. I have gone into a restaurant and taken my jacket off exposing my weapon. I could definitely see some faces looking very worried. On the other hand, walk into a sporting goods store and no one really looks twice, except maybe to see what kind of gun you are carrying and maybe ask you how you like it. Yeah, a little common sense goes a long way. Maybe the AK legislature will obtain some and write an amendment to their carry laws that clarifies things for everyone. In the mean time, maybe the people of AK just need to get educated on their laws, realize where the CC is the better option at the time, and push their legislature for change. You know; exercise their American rights.

    A couple other quick things: 1) JoeR, we really do not need your foul inferences here. If you want to post constructive or fun comments like everyone else, that’s great. But foul, negative comments like yours have no place. 2) You gotta love the authors disclaimer – an attorney is as an attorney does.

  18. To all you people who tried to sound smart. AK is NOT Arkansas. It is Alaska. So i now find your opinion ignorant and not correct. idiots.

  19. Also I live in Arkansas. The cops don’t care about the law here. I’ve watched them shoot people and plant evidence. All they have to do is put your gun on the ground after they murder you. I’ve seen it. So go ahead and exercise your “rights”. They will not save your life.

    • What part of the state do you live? I have noticed multiple people who are OC in the NW area of the state and no law enforcement officials have planted a firearm on or near the person.

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