The University of Arkansas School of Law, a highly ranked and prestigious law school, recently published a law note essentially admitting that open carry of a handgun without a license is legal in the state of Arkansas. Law notes are published from time to time to assist and inform members of the bar and the law community with useful insights and research about various subjects. Laurent Sacharoff, Associate Professor of Law, who specializes in teaching criminal law, wrote this particular law note, entitled “Open Carry in Arkansas-An Ambiguous Statute”.
The premise of Sacharoff’s note is that the Arkansas Legislature made a big mistake. The mistake that he claims was made has resulted in the unintended consequences of the language used in Act 746, which he grudgingly admits grants citizens the right of open carry. He endeavors to prove this premise by talking at great length about the history of HB 1700, and other firearms related bills, and the possible intentions of the legislators. In his view, since a completely separate bill, HB 1408 (which would have granted limited open carry rights to licensed individuals in rural areas), never made it out of committee and did not become law, therefore the legislature obviously must not have intended for any other type of bill to decriminalize open carry.
The Professor claims that there is “confusion” over the language of the bill. In fact, the only confusion is how the language of the bill could confuse anybody, as it is pretty straightforward. Act 746 made technical changes to Arkansas statute 5-73-120. The old language made it a crime for anybody to carry a handgun with the purpose of using it on another person, even in self-defense, unless one had a license. The new language of the law makes it a crime to carry a handgun for the purpose of “unlawfully” using it on another person. The use of deadly force in self-defense is legal in Arkansas, therefore carrying a handgun for that purpose falls within the law and is no longer a misdemeanor offense.
Sacharoff freely admits at this point that the language of the law clearly permits open carry, but he does not stop there. He goes on to discuss the courts responsibility to look at the intentions of the legislature, and to look at the history of the bill, and others like it, which were already discussed. But then in the midst of this argument, he admits that the first and main thing that the courts will look at is the plain reading of the law, which he already admitted allows for open carry.
He then goes on to say that the courts should look at the specific context of the law, and the surrounding statutes. He makes a point that the statutes regarding concealed carry permits were left untouched by the bill, and believes that this means the legislature had no intentions of allowing open carry. Otherwise, wouldn’t they have repealed or revamped those statutes? However, there is an easy explanation for why the concealed permit statutes were left untouched, and that is reciprocity with other states. Even though open (or even concealed) carry is now legal in Arkansas without a permit, it is not so in most other states. For a gun owner to legally carry his or her weapon across state lines, he or she would have to possess a valid concealed carry permit that is recognized by other states.
We come back to the plain reading of the law, which decriminalizes open carry of a firearm. The Professor asks how can the court break the deadlock between the plain reading of the law and the supposed intentions of the legislature. He then discusses the legal doctrine of lenity, which basically means that the court will rule in favor of the defendant in the case of an ambiguous law.
In effect, the application of lenity means that the courts should ultimately rule in favor of open carry. In Sacharoff’s own words:
“It seems to us a court facing a defendant arrested with a gun would interpret the statute based upon its plain meaning. When all is said and done, how can the court punish a person for following the literal and unambiguous meaning of the statute? A person should not be expected to consult the history of the law’s passage, or its political context, to understand what it proscribes. Courts should interpret statutes as written to encourage legislatures to draft their criminal laws more carefully, putting people on clear notice about what constitutes criminal activity.”
As a final note, Sacharoff mentions that his own county prosecutor is on record as directing the Sheriff not to arrest someone for simply carrying a gun. The prosecutor also relayed that all but 2 of the 28 county prosecutors have informally stated the same to their Sheriffs. It would appear that the vast consensus in the state amongst law enforcement officials leans towards understanding and recognizing that Act 746 has decriminalized the Constitutionally protected natural right of the individual to keep and bear arms in the state of Arkansas.
Although Professor Sacharoff reluctantly admits what most of us gun rights supporters already knew, he does not seem to want to agree with his own findings. He ends his note with an urging to the legislature to revisit Act 746 immediately. He suggests that if they want open carry, they should do so explicitly. However, he personally wants them to return the statute to its previous reading, which limits the natural right to bear arms to only those that can afford a permit, and bans the open carry of firearms altogether.
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