Carrying a gun in Arkansas

Miscellaneous and Personal Stuff I Must Share
1

I came across the debate on gun rights boards about the legality of carrying a gun without a permit. I normally ignore the garbage, but it will soon be handled by the courts. Here is the relevant law:

[QUOTE=Ark. 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.

(b) As used in this section:

(1) “Club” means any instrument that is specially designed, made, or adapted for the purpose of inflicting serious physical injury or death by striking, including a blackjack, billie, and sap;

(2) “Handgun” means any firearm with a barrel length of less than twelve inches (12’') that is designed, made, or adapted to be fired with one (1) hand;

(3) “Journey” means travel beyond the county in which a person lives; and

(4) “Knife” means any bladed hand instrument three inches (3’') or longer that is capable of inflicting serious physical injury or death by cutting or stabbing, including a dirk, a sword or spear in a cane, a razor, an ice pick, a throwing star, a switchblade, and a butterfly knife.

(c) It is permissible to carry a handgun under this section if at the time of the act of carrying a weapon:

(1) The person is in his or her own dwelling or place of business or on property in which he or she has a possessory or proprietary interest;

(2) The person is a law enforcement officer, correctional officer, or member of the armed forces acting in the course and scope of his or her official duties;

(3) The person is assisting a law enforcement officer, correctional officer, or member of the armed forces acting in the course and scope of his or her official duties pursuant to the direction or request of the law enforcement officer, correctional officer, or member of the armed forces;

(4) 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;

(5) The person is a registered commissioned security guard acting in the course and scope of his or her duties;

(6) The person is hunting game with a handgun that may be hunted with a handgun under rules and regulations of the Arkansas State Game and Fish Commission or is en route to or from a hunting area for the purpose of hunting game with a handgun;

(7) The person is a certified law enforcement officer;

(8) The 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;

(9) The person is a prosecuting attorney or deputy prosecuting attorney carrying a firearm under § 16-21-147; or

(10) The person is in possession of a handgun and is a retired law enforcement officer with a valid concealed carry authorization issued under federal or state law.

(d) Carrying a weapon is a Class A misdemeanor.
[/QUOTE]

It seems clear from (a) that a person may carry a gun so long as he does not intend to “attempt to unlawfully employ” the gun against a person. Case closed, it seems, but then list ten examples of people who are allowed to carry guns.

Surely those ten classes of people aren’t allowed to carry a gun to attempt to unlawfully use it against a person. It seems like surplusage.

Then I thought that the “unlawfully employ” part only applied to the last clause of subsection (a) which discusses “otherwise available for use” but that makes no sense either. It would imply that people in Arkansas are prohibited (except for the 10 exceptions) from carrying a gun on their person or in a vehicle entirely but could leave hidden guns all over town so long as it wasn’t for an illegal purpose.

Under either interpretation, the excepted 10 are allowed to carry intending to harm someone (as long as they don’t do it or threaten to do it).

And the “journey” exception also seems absurd. You can’t carry a gun on the sidewalk in front of your house, but people from 49 of 50 states and everyone in Arkansas outside of your county is allowed to? How does that make any sense?

Can anyone reconcile these two problems with this law so that it begins to seem rational as written?

2

This looks like a law written to allow police flexibility in using it; i.e. you can use the fairly vague “unlawful” part if you need an extra charge to book someone on. Thus the list of specific exceptions: these are specific cases the writers wanted to allow, and are specifically calling out as not meeting the “unlawful intent to employ” hurdle.

3

3 has caused confusion. Some think you can travel with a gun in your car within your county. That would be useful if you were traveling to a target range. Or if you were going back and forth between your home and your business. Others weren’t so sure about the law.

I decided not to risk it. I took the carry class and got my cc license. I enjoy target shooting and didn’t want to worry about a traffic stop.

4

A cite on the issues with the new law. I remember years ago you could transport a unloaded handgun in the trunk of the car. But these days I didn’t even want to do that without my cc license.

http://www.ozarksfirst.com/story/benton-county-sheriff-weighs-in-on-open-carry-in-arkansas/d/story/x0vFahuj80m0eeh5j3ReCQ

5

It is currently uncertain whether or not open carry is permissible, even among people who passed the law.

Eventually there will either be official clarification, a law passed that specifies whether or not it’s permitted, or a test case. Until it’s cleared up, avoid being that test case unless you have deep pockets or the backing of a gun-rights organization and a willingness to lose your rights if you lose in court.

In other words, get a permit. :slight_smile:

6

I see the gun rights board talking about open carry and sheriff’s saying that the law doesn’t say that. Others are concentrating on the “journey” exception to the law. But, IMHO, the plain text of subsection (a) doesn’t allow a charge unless I’m going to shoot someone unlawfully.

Scenario: I am in Target openly carrying a pistol (no permit). A police officer charges me with a violation of this section. Unless he can show that I carried the gun “with a purpose to attempt to unlawfully employ the handgun…against a person” then I have not violated this law, correct? What is the argument to counter that?

7

But they seem absurdly superfluous. Is there someone who believes, for example, that a law enforcement officer or a soldier could conceivably be charged under this section because of a mistaken belief that he intends to use his duty gun unlawfully?

I supposed the law could be read/intended to be read with the implicit assumption that a person is carrying a gun for an unlawful purpose unless an exception applies, and that such an assumption is defeated if the person is hunting, on a journey, a police officer, a concealed weapons permit holder, etc. but such a presumption would be constitutionally invalid. A probable cause affidavit would have to plead facts to show this intent to employ unlawfully. Presumptions aren’t allowed.

The law doesn’t, as most state do, ban the carrying of a gun, except and unless. It bans the carrying of a gun for an unlawful purpose, but the following ten non-exclusive examples are not unlawful. The statute adds an element to the offense that law enforcement generally does not have probably cause to establish for an arrest.

I would be interested in seeing how my Target open carrying example could be prosecuted and what my PC affidavit would contain that wouldn’t get my arrest summarily dismissed, expunged, and have the officer’s ass chewed for doing it.

8

Here’s Open Carry’s page. They note the ambiguity but the sheriff sounds like he’s talking out his ass. And even California allows unloaded in trunk (with ammo in separate container).

With Target, you could probably be arrested for trespassing if the store asked you to leave or a sign was posted and you refused to leave.