Is Open Carry Legal in Arkansas? Depends On Who You Ask.

Oct 8, 2013

House Chamber of Arkansas General Assembly

Whether it's legal to openly carry a weapon, like a handgun, in public in Arkansas may depend on who you ask or where you live. KUAR’s Jacob Kauffman examines legislation that took effect this August as gun rights activists are openly demonstrating their interpretation of the law. 

A law passed by the 2013 Arkansas General Assembly, Act 746, is being lauded by gun advocates as allowing the open carry of firearms in public places. They've been nominally supported by a few district prosecutors and local law enforcement agencies. But Attorney General Dustin McDaniel and the state police say the law means open carry is still illegal.

Felicia Epps, the Associate Dean at the UALR Bowen School of Law, said the issue of legislative intent is paramount when a law generates varied interpretations.

“When a law goes before a court to interpret it and apply it what they’re ultimately after is what was the intent of the legislature in enacting that law? First they’re going to look at the text of the law, what is actually said, to try and glean from that what was the intent of the legislature,” said Epps.

But it may be the case legislators voting on the bill had a different interpretation than what a plain reading of the bill might reveal. The question is whether or not the legislature unintentionally legalized open carry.

“To us it was more of a clean up bill and making it more clear that if you’re traveling and have a firearm with you and you’re concerned the last thing you’re thinking about is whether you’re open carrying or not,” said Republican Senator Jon Woods. He voted for the bill and sits on the Senate Judiciary Committee, which approved the bill. Woods continued, “To us it wasn’t necessarily an open carry bill.”

Woods co-sponsored a bill that started and failed in the House that would have directly approved the open carry of handguns. Since the bill passed, Woods and some of his colleagues, like Republican Senator and Judiciary committee chair Jeremy Hutchinson, said they read the law differently now.

“There’s a provision that says it shall only be unlawful to carry a weapon, and it doesn’t distinguish between open carry or concealed carry, it shall be unlawful to carry a weapon only if you plan to do something unlawful with it. Otherwise it seems a plain reading of the language seems like every other carry is permitted,” said Hutchinson.

Democratic Judiciary co-chairs John Vines in the House and Robert Thompson in Senate agree the idea of open carry was never understood as the intent of the bill at the time. But Senator Thompson also think differently about the issue now,

“I have to say in reading the act it’s not completely clear and until there’s a judicial interpretation of it, it’s really sort of a question mark,” said Thompson.

The collective memory the bill did not pertain to open carry regulations is shared by nearly all members of the Judiciary committees. However, Senator Gary Stubblefield and Representative Bob Ballinger are two exceptions.

Stubblefield told KUAR it was confusing to see the bill come up after a straightforward open carry bill failed but he understood it as a “backdoor way” to pass open carry legislation. Ballinger said he knew the bill dealt with significant gun issues, but it took him a while to determine it legalized open carry.

“I don’t know if I knew it before the final vote on the floor in the House but I knew it before it was out and signed by the Governor,” said Ballinger.

Republican Jake Files, the main Senate co-sponsor of the bill, said the language does suggest to him prosecutors would have to prove someone carrying a weapon had an unlawful intent in doing so. Yet he maintains open carry was not the intent as understood at the time.

“There’s a 135 different people that probably had different intentions. I don’t think the intent in the grand scheme of things, to be perfectly honest, was for there to be open carry. I think that would have received a lot more attention and been a whole different debate,” said Files.

He pointed out both State Police and the Attorney General vetted the bill and concluded it only made technical corrections addressing carrying firearms while traveling, also known as the journey provision. This sentiment has been echoed by the governor's office.

But Files, like a growing chorus of electoral candidates – like Republic gubernatorial candidates Asa Hutchinson and Curtis Coleman – now say it seems like it does allow open carry.

“My opinion is that it puts the presumption of somebody committing a crime, it takes that away. In that regard I think it does open itself up to open carry,” said Files.

Nicholas Stehle with Arkansas Carry said the main architect of the bill, Denny Altes, who did not return our phone calls, made it clear in a floor speech that open carry would be legal.

“You can go back and he actually makes mention in his floor speech to the intent part of the law,” said Stehle.

In Altes’ brief remarks, he said the language to make the carrying of a weapon illegal only if the intent is unlawful was suggested by Representative Douglass House. This language has been championed by those claiming open carry is now legal. But the man behind that language told KUAR open carry was never the intent and he agrees with the Attorney General and Republican Speaker of the House Davy Carter. 

Referring to open carry, Douglass House said bluntly, “No, it’s not legal." What House did say is the bill's main focus is to allow Arkansans to have weapons in their vehicles while traveling without concern of violating the law. Several other lawmakers have also consistently interpreted the bill this way. 

Democratic Candidate for Attorney General and Representative from Nashville Nate Steel said, “I say that as someone who actually voted for an open carry bill also. Representative Sue Scott’s bill that allowed for qualified open carry outside of incorporated areas. I don’t’ have a major problem with some of that legislation but I don’t believe that’s what this bill is.”

Currently the divide on the intent of the law is being played out on the hips of members of the gun-rights group Arkansas Carry. They’ve marched in three cities with guns on display and have plans to keep pushing their interpretation. And while the enforcement and meaning of laws is supposed to be uniform across the state, in practice that hasn't been the case with this one.

The one thing the majority of lawmakers do seem to agree on is that the law should be revisited and clarified.

Senator Woods said, “I would be more in favor of a follow up bill next session that just addressed it head on that just came out and said open carry.”

Jacob Kauffman. KUAR News.