Constitutional Carry: Governor’s Impression or Legislative Intent?

A new map of Arkansas.

A new map of Arkansas.

Our post earlier in the week about Act 746 — and the possibility that it brought constitutional carry to Arkansas — has created a bit of a stir. In fact, that story has gotten more pageviews than any story in the history of The Arkansas Project, even including the fabled Kinkade Era. This is no small accomplishment.

Our story has been referenced by a multitude of websites and newspapers; it was even a brief topic of discussion on KARK-4 this morning. That discussion has often invoked the idea of “legislative intent.” Unfortunately, some have confused legislative intent with gubernatorial intent. These two ideas are very different.

For instance, Matt Decample, the governor’s spokesman, told The City Wire yesterday that the governor didn’t understand the full implications of the law when he signed it:

DeCample emphasized that Beebe did not sign the law with the understanding that it could be interpreted as allowing people to openly carry firearms in public places. 

“You’re not talking about a legal interpretation, you’re talking about one interested party. You don’t know how anyone’s going to interpret a law.”

Of course you don’t know how anyone’s going to interpret a law: all you can do is make reasonable guesses. In fact, the governor, or his spokesman, is entitled to say whatever he’d like about Act 746 or anything else — they are entitled to their own opinions. There is, however, no constitutional right or established legal doctrine that allows the governor to determine the ultimate meaning of the law simply on the basis of what was going through his mind when he signed a bill. For instance, if Act 746 gets challenged in court — which it almost certainly will — does the governor envision a judge saying, “Hmm, I wonder what was going through the governor’s mind when he signed this piece of paper?” Presumably not: a court will look at the language the legislature used when it wrote and passed the law, and perhaps the court will draw inferences about legislative intent from the bill’s language. But it is essentially irrelevant what the governor thought when he signed the bill, or indeed what he thinks now.

However, for those who are curious about legislative intent, a brief historical excursion might be helpful.

In 2011, Rep. Denny Altes — lead sponsor of what is now Act 746 — filed a bill known as The Defensive Carry Restoration Act. This bill, according to Arkansas Carry, would have decriminalized the possession of a gun as well. It didn’t pass, but it certainly demonstrates that Rep. Altes is sympathetic to expanding our Second Amendment rights.

As for the new law, Act 746, it accomplishes several goals:

1. A journey is defined as traveling outside of a person’s home county;

2. Possession of a handgun is decriminalized; and

3. The act reaffirms the right to carry by saying “it is permissible to carry a handgun;” previously, the statute had outlined exceptions to prosecution, which is a significantly weaker protection.

Arkansas Carry has since issued a more extensive explanation:

Denny Altes also changed the section of 5-73-120 that originally was a list of “defenses to prosecution.” By changing this language from “defense to prosecution” to places and situations that were “permissible” to possess a weapon, he further shows his intent to remove any criminality of carrying a handgun in self-defense.

This certainly seems to add weight to the argument that the act was meant to do what it says it does — to decriminalize possession of a firearm.

It’s remarkable that so many pundits are missing this part of the story — the definition of a “journey” is only part of the bill, and not even the most significant part. As I wrote before, the law now requires that prosecutors prove an unlicensed gun carrier intended to use that firearm “unlawfully. Unlawful intent is now a prerequisite for being charged with a crime for possessing a gun. In other words: you can carry a gun, without a license, so long as you aren’t intending to use it to commit a crime. This is the part of the law that makes Act 746 universal constitutional carry.

Today, in the Jonesboro Sun, State Police Director Stan Witt responded specifically to our coverage of Act 746 and said we are wrong:

This kind of got twisted around in the media…It’s kind of been twisted where that’s construed as open carry: you can just strap a gun on while you’re going down the road, and you can get out and go in a [convenience store] with your gun whether you have a concealed carry permit or not. That’s not true.

The journey law strictly deals with you have a firearm in your vehicle. If you have it strapped on your leg, that’s fine; but once you get out of that car you have to leave that gun in that car unless you have a concealed handgun carry license. There is no open carry law.

Unfortunately, Director Witt, much like the media, has overlooked the other two provisions of the law that decriminalize possession — in or outside of your home county. He also failed to cite the section of the journey law that says it only applies to vehicles — perhaps because it doesn’t exist. There’s no reason to think a journey would end when someone exits a car. As a general matter, it shouldn’t take a Ph.D. to understand that a journey ends when someone gets back home.

According to the report, Witt “noted that his agency opposed legislation in the recent legislative session that would have permitted open carry of handguns.” But ironically, Arkansas Carry says Rep. Altes worked closely with the Arkansas State Police in drafting his bill:

[Rep. Altes] gave the bill to the Arkansas State Police and their legal staff and worked with them on the language; it was carefully vetted by that department. He then gave it to sheriffs across the state, and they had no problems with it.

No doubt some gun-rights opponents are scurrying to request an opinion on Act 746 from the Attorney General. But Arkansas Carry says Senator Jake Files previously requested an Attorney General opinion on their behalf, seeking a definition of the word “journey.” The result? AG Dustin McDaniel declined to define the word, saying that a definition should come from the legislature. Arkansas Carry says they then worked with the AG’s staff to construct the definition of a journey that we now see in Act 746. It therefore seems uncertain that a subsequent AG opinion would undercut the law.

At the end of the day, it won’t matter what I, Arkansas Carry, Governor Beebe or Stan Witt says — or even what Dustin McDaniel says. What will matter is what the law, as interpreted by a court, says. I tend to think that a careful court will see very clear, very strict language that was inserted with a specific purpose: namely, the decriminalization of firearm possession and the upholding of Arkansans’ constitutional rights.

Comments

  1. Jason Borne says:

    The problem with the statute is that your intent can be inferred from the circumstances. See McMahan v. State, CACR95-1293, 1996 WL 551395 (Ark. Ct. App. Sept. 25, 1996) (“The purpose element may be inferred from the facts”).

    The prosecutor does not have to prove that you subjectively intended to use the handgun unlawfully.

    • Jason,

      So the word “unlawful” in our state law is meaningless?? This law clearly increases the burden of proof on the state. Don’t you agree?

      • Jason Borne says:

        Paul,
        It does increase the burden on the state, but that does not change the fact that the prosecutor can “prove” your intent by the circumstances. The prosecutor can argue that you intended to use the handgun unlawfully based solely on real or perceived circumstances. You might be acquitted of the charges by a jury, but that arrest will stay on your record and you may have lost your job in the meantime.

        I won’t be the one to test it out. It is not clear what the courts will do and is not worth risking my career to find out. I will stick to carrying concealed for now. :)

        • The change from a presumption of guilt to the prosecution’s burden of proof, isn’t just a minor detail. It is a major shift in the law.

          Under previous law, the prosecution only had to establish a fact: the defendant possessed a handgun. That was it, automatic “guilty” verdict.

          Having to argue and prove “intent” beyond a reasonable doubt is a very, very difficult standard to overcome for a prosecutor. Unless, of course, the defendant has made some truly stupid yet admissible statements.

          • Jason Borne says:

            When you open carry and get arrested, I will represent you pro bono. I’ll be checking the news after the law goes into effect.

  2. If I were new to the state of Arkansas and read that statute, I would be under the impression that I could carry a firearm without a permit. Stan Witt is a moron. The statute doesn’t mention anything about a car, because a joutmey could be taken on foot, a bicycle, motorcycle etc.

  3. I understand the positive effect the changes will have for everyone concerning guns, however I do not understand why they lowered the legal length of a knife from 3.5″ to 3″?

  4. I didn’t even know we had laws prohibiting people carrying knives.

    • The 3.5″ standard has been a law for as long as I can remember. Going from 3.5″ to 3″ doesn’t sound like much, and admittedly isn’t an earth shattering change but it is a step backwards for us to carry a broader selection of pocket knives and not get into trouble.

      • 09-FEB-2007 — The Arkansas legislature has repealed Sec. 5-73-121 of the Arkansas Code pertaining to the offense of carrying a knife as a weapon. Prior to its repeal, Sec. 5-73-121 had imposed a three and a half inch blade length limit on knife carry, and knives carried with blades over the specified length were presumed to be weapons under the statute.

        With the repeal of Sec. 5-71-121, implemented as Act 83 of 2007, Arkansas no longer has a statutory blade length limit for knife carry.

  5. Frank Gilbert says:

    Hey, Jason. Does that offer of free representation cover me too? I’m tempted to cross the county line and go to Benton with a gat on my hip. But first, how good a lawyer are you?

    • Jason Borne says:

      It’s only a misdemeanor. You should be fine with a public defender. ;).

      On a serious note, I will consider repping someone pro bono who is arrested under this statute. Caveat- I am not suggesting that anyone open carry.

      I will check back here after the law goes into effect.

      (Fyi, this name is an alias).

  6. Ranch Hand says:

    Tip o’ the hat for constitutional carry. I surly hope that open carry works out. Yea, it ain’t appropriate all the time, but at least it would provide defense for those times when I’m on my bike and my jacket blows up, revealing my ‘concealed’ carry. I am of the opinion that concealed carry has tactical advantages; the criminals won’t know who’s armed and who isn’t. But some times, I just feel like strapping on my hogleg and going out. I don’t have criminal intent, so I should be legal! (if that’s how the courts interpret the new law) And no, I’m probably not going to be the first one to test this out