The Greatest Untold Story of the 89th General Assembly

gun billYou haven’t read about this story in the mainstream media. It wasn’t reported during the legislative session, and perhaps it would never have been reported if it weren’t for The Arkansas Project and the folks at Arkansas Carry. But what you are about to read is the story of what may be the most significant (pro-liberty) accomplishment of the 89th General Assembly. 

In late February, the legislature considered HB1408, a bill that would have legalized carrying a firearm openly in Arkansas. The bill was defeated after spokesmen for the state police testified against the bill (I chronicled these events here, in our most-read story of the session). Lovers of liberty were dismayed to see the first Republican majority in 138 years balk at upholding constitutional rights. A Twitter war ensued between the Speaker of the House and gun rights advocates; Second Amendment advocates began muttering about primaries against those who defeated the bill. But while all of that was going on, legislators were working behind the scenes to push through a bill that would accomplish essentially the same purpose — legalized unlicensed carry in Arkansas.

The bill, HB1700, actually made it out of committee, through both chambers, and was signed by the governor. It is now Act 746. Perhaps some legislators did not know what they were voting on; perhaps many of them will not know until they read this article.

Act 746 makes two significant changes to gun laws in Arkansas. Under Arkansas law, Arkansans are allowed to carry a firearm unobstructed, without a license, while on a “journey.” Some gun advocates have long said that because of this law, open, unlicensed carry has always been legal in Arkansas. I know folks who have carried a firearm — concealed — without a license under this statute. Since a “journey” was never defined in the law, you could travel wherever you liked and if you were stopped by law enforcement, you could always say, “Well, I’m on a journey.” Other laws, such as the concealed carry statute, suggested that this interpretation of the journey law is incomplete at best. However, Act 746 puts that argument to rest by defining, for the first time, what a journey actually is. Under this act, the scope of a journey is defined as extending “beyond the county in which the person lives.” If you travel outside of your county of residence in Arkansas, you can now legally carry a firearm without a license. Needless to say, this is big news.

The second big change brought about by Act 746 is in regard to criminal intent. Under previous Arkansas law, prosecutors who wanted to prove criminal possession only had to meet a minimal requirement: they were only required to demonstrate that a person in possession of a gun intended to use it against a person. The revision in Act 746 requires that prosecutors demonstrate a gun owner intended to use their firearm against a person “unlawfully.” This clarification is important because it appears to give immunity to those who would use their firearm against a person in self-defense. Previously, this kind of gun possessor would remain vulnerable to prosecution under the law.

Nicholas Stehle of Arkansas Carry said his group was surprised by the bill:

We were caught by surprise with HB1700. We understand that it was fully vetted by the Arkansas State Police and the sheriffs and prosecutors in Arkansas. Though it doesn’t take effect until sometime in July, we believe it will have the practical effect of legalizing the carry of firearms for self-defense purposes in Arkansas. 

The bill also contains a definition of the word “journey”, which is now defined as leaving your county. Therefore, a person would be able to carry under this law, in plain view or concealed, if they leave their home county.

Additionally, Stehle reminded Arkansans that there are still places in the state where it is illegal to carry a firearm:

There are some prohibited places under this law. While it isn’t attached to the concealed handgun license prohibited places, there are other places in state law where carrying a firearm is prohibited. Such places include posted places (places with signs), federal gun free school zones, other school campuses, the State Capitol grounds, airports, school bus stops, and possibly others.

We encourage people to consult with their attorneys before carrying a firearm openly or concealed under this law. It is brand new, and to our knowledge it hasn’t been tested. Again – it doesn’t take effect until this summer. We will watch closely for violations of citizens’ rights under this Act.

It is remarkable that this bill made it all the way through the legislature without any serious opposition or media attention. It got 28 out of 35 votes in the Senate and did not garner a single dissenting vote. In the House, it earned over 80% support with only one dissenting vote. Now that the bill has become law — and now that we’re openly describing the fundamental changes it creates — it will surely receive more media attention. Legislators may even come under public pressure to repeal the law when they reconvene briefly in May. But perhaps we’ve gotten a rare, candid look at the new conservative policies we might see coming through the legislature without undue pressure from the governor, the mainstream media, and outside interest groups (Arkansas Carry, a pro-gun rights advocacy group, wasn’t even involved in its passage). Perhaps this entire saga could serve as a case study for what types of pro-liberty policies we could see in a world where legislators’ primary interest is passing good legislation that upholds our Constitution, independent of outside influence.

In addition, I hope this story in particular serves as a reminder to each one of you reading that The Arkansas Project is a must-read policy blog (if I do say so myself). You’ve gotten (and will continue to get) news and analysis here that you simply cannot find anywhere else. Thank you all for your continued readership and support. We have a lot of work left to do for liberty in Arkansas.

Coming soon: an analysis of the “private option” fallout and where we go from here.

Comments

  1. So when does it take affect? Now or is it a July 1 thing?

    And also what this part of the bill…

    “SECTION 2. Arkansas Code § 5-73-120 is amended to read as follows:
    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.”

    This says nothing about a journey. It’s written to seem to make it legal to carry anywhere in the state.

    • That was the defense-centered part of the bill. Read the last big paragraph before the first quote.

  2. Bob McCartney says:

    Our legislators need to be applauded. Our Federal Gov. is completely out of touch to what is happening. Now the legislators can turn to trimming State Gov. How many credit cards are being used for personal use, sell unused buildings owned by the tax payers, sell off state land, merge state departments [anyone counted all the departments]? How many vehicles does the state own, etc.? A good manager good have a field day. Thanks to The Arkansas Project for keeping us informed.

  3. I thought a journey had to be somewhere that you didn’t ordinarily travel. So under this new def one without a permit must keep their weapon and ammo outside of the passenger compartment with gun and ammo in separate containers both locked until they leave the county? We need a guide with common sense examples of various situations.

    • Before this, a journey was vaguely defined as something beyond your day-to-day affairs, but I could find no official definition. It was up to the discretion of whomever was trying to curtail your right to self-defense. Now it is concrete. Travelling beyond your county. And, no, you don’t have to wait until you cross the county line. If you are embarking on a journey (even if you decide this at the moment you are confronted by law enforcement) you are well within the law.

  4. So will this mean that we will be “legally” allowed to Openly Carry outside of our county of residence without a CCL, whether we are inside or outside of our vehicles?

  5. Chris Boudreaux says:

    A journey undefined did not give Open Carry to Arkansas how does defining the term more closely do that?

    This is hype. Maybe the posters can volunteer as test cases. I know, drive out of your home county, strap on your favorite piece and waltz through a Walmart. You can cite Act 746, after 90 days of course.

  6. So why do we need the Second Amendment at all if we need to get one “law” after another passed just so we can “bear arms” in this state? Might as well just throw the whole Bill of Rights right out the window…if we don’t stand up and uphold the Constitution and Bill of Rights in and of themselves, they will become moot…for what it’s worth, our family doesn’t “journey” outside of our own county all that much. So, we can’t “bear arms” inside of our county (which would be most of the time for us)??

    • We will have answers soon enough on what this Bill actually means. I agree with what you are saying 100%. The 2nd Amendment is the only amendment that is “taxed” and we have to have “permission” to exercise that right. Go figure.

  7. I was browsing through the Arkansas Codes and I could find nothing regarding Open Carry or anything that would prohibit it within Tit. 5, Subtit. 6, Ch. 73. Even HB 1700 mentions nothing at all about prohibiting open carry and only mentions concealed carry with a valid CCL permit. Would this not mean that Open Carry is de facto legal? The plot thickens!

    • Derrel, the present law bans carrying a weapon, period, openly or concealed. It makes exceptions, such as when on a “journey” (which was undefined before this bill), or with a concealed carry license.

      Having a license requires carrying concealed only.

      So, the only legal way to carry with confidence before this bill, was licensed and concealed. Open was not an option, unless you wanted to test “journey” in court.

  8. It appears similar to Wisconsin law. Open carry was legal but anti-constitutional police persecuted open carriers with charges of disturbing the peace. Wisconsin has a stronger state constitutional protection for bearing arms than Arkansas does. After the State attorney general issued an opinion that the mere carrying of arms was not disturbing the peace, open carry became more common.

    Several police agencies settled lawsuits against them for violating the rights of open carriers.

    The next legislative session cemented open carry in vehicles and one of the best shall issue laws in the country.

  9. Timothy Simmons says:

    Probably the same old you’ll find out what’s in it after you pass it.

  10. Steve Gartman says:

    What about the person who lives, works and shops in Pulaski County? He’s not on a journey. Like everyone else here, I like the premise, but I’ve never seen a law that left so many unanswered questions, especially when the title claimed it’s purpose was to correct some questions.

  11. Bill Luckett says:

    Before the definition of ” Possession ” there was a very gray area due to the old law of ” on a journey, in unfamiliar territorry…..” The definition of Possession that was included in Act 419 plainly stated in ‘” in the passenger compartment of any vehicle where the driver or passenger has readily accessable……” It was considered to be in possession and must have a permit. I thought the gray area had been defined. Now we are back at square one. I can’t wait to hear what LT Gentry has to say about this. What are we as instructors suspossed to teach our clients now? I don’t see it as “open” carry, although I understand how someone might interpretit that way. I don’t know if it’s a step forward or 2 steps back. I’ve always stood up and said we (as instructors) are not to interpetit the law or Act but to teach it. Well, I’m totally confused now.
    please pardon the spelling, as I wanted to get this on paper, I’ll correct it later.

    • Bill Luckett says:

      Before the definition of ” Possession” there was a very gray area due to the old law of ” on a journey, in unfamiliar territory…..” The definition of Possession that was included in Act 419 plainly stated in ‘” in the passenger compartment of any vehicle where the driver or passenger has readily accessible……” It was considered to be in possession and must have a permit. I thought the gray area had been defined. Now we are back at square one. I can’t wait to hear what LT Gentry has to say about this. What are we as instructors supposed to teach our clients now? I don’t see it as “open” carry, although I understand how someone might interpret it that way. I don’t know if it’s a step forward or 2 steps back. I’ve always stood up and said we (as instructors) are not to interpret the law or Act but to teach it. Well, I’m totally confused now.

    • I was under the impression that the key word in the paragraph of the law your writing about stated “unlawfully” but now that was changed to “lawfully” (such as the intent to use only for self defense” thus making it legal now, since I had no unlawful intent to harm someone with the weapon inside my vehicle without a ccw and not locked in seperate containers. I found Arkansas times had a good article, the open carry Arkansas website and reading the bill fully.
      I do 15 years ago I had a gun loaded in the pocket of my door and was charged but when in court, I was able to show where I had been almost beat to death by a subject and this subject had numerous warrants still out for stalking me, chasing me in an attempt to harm me but police arrived and saved me and this was all after he had beaten me half to death so the judge threw the charge out of court saying I had every right in this situation to attempt to protect myself. It never got out of district court to make it to circuit. I do NOTcarry a weapon of course in my car nowas that was many, many years ago and not under any threat as I was then and was always illegal maybe till now but I am not testing the waters myself!

      • The first thing the Act did was define “journey,” which now, according to the new Act, is defined as traveling “beyond the county in which the person lives.” Arkansas law allows residents to carry a firearm UNOBSTRUCTED, without a license, provided the resident is on a “journey.” Previously, residents could interpret this as a right to carry, concealed or openly, with the thinking that they were always on a “journey.” The term was vague and open to exploitation. The new Act brings legal clarity to what is considered a journey in the state.

        The second thing the act did was to more clearly define intent in relation to carrying a weapon. As the law formerly read, it was considered an offense to carry a handgun with the purpose of using it against another person, which could be read to include those carrying a handgun for self-defense. Act 746 specifically defined that it would be such an offense only if the handgun was carried “with the purpose to attempt to unlawfully employ the weapon against another person.” Self-defense was made an exception since defending oneself is not unlawful in the state of Arkansas.
        http://www.guns.com/2013/04/25/will-arkansas-to-be-the-fifth-state-to-enact-constitutional-carry/

  12. Jerry Petrey says:

    I am still confused, only at a higher level !!!

  13. Mark Johnson says:

    The crux of the issue is that for the first time “journey” is defined by statute, not by previous court precedent, prosecutorial opinion, or by an individual sworn officer. The “journey” provision has been in law for a long time, just not clearly defined.

  14. EX

  15. Sherwood says:

    Just wondering, because of the first part talking about it being permissable to carry for lawful purposes, does that men the journey clause is now just a legal example and not a “you can only carry when/how this says.” If going by the first paragraph its legal everywhere, if going by the journey clause, then it makes no difference to anybody whose whole life is in one county.

  16. If I read the “journey” clause correctly that means people including criminals can openly or conceal a weapon while visitating my home county, while I being a law abiding citizen , not on a “Journey” remaining in my home county must travel within my home county lines unarmed,subjected to unknown visistors openly armed….. What a joke, folks better to be safe than sorry get your ccl permits!!!

    • Sherwood says:

      criminals (read felons) can’t own a gun anyways meaning any form of carry for them is an unlawful purpose. Or did that just happen to skip your mind before you went on your rant

  17. I think the issue is this. It has always been a gray area whether it was legal to carry or not. As far as I know, no one who can legally own a handgun has been procecuted for carrying one exposed in their vehicle in Arkansas. The question now is what law could you be breaking if you carry one in the open, either on your person or in your vehicle? On what charge could you be arrested? The only exceptions I am aware of are local ordinance, areas that are banned by property owners or legal custodians and areas specifically banned by law. Over the past 40 years I have personally asked several law enforcement officers if it was legal to carry in a vehicle. Not one gave me a dirrect answer. They prefer the gray areas. It gives them an excuse to search but Arkansas counties are predominately poor. Since there is now no specific crime involved except in the cases I mentioned above, I believe they will mostly be walking very carefully. Cities have or believe they have the right to pass ordinances against open carry. County quorum court members and local officials and law enforcement officials are mostly undereducated and over powered. This is the people we need to watch.

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  19. Michael Handiboe says:

    what an embarrassment! arkansas passes a gun law nearly unanimously but no one knows for sure what it means. so now everyone — citizens, law enforcement, judges, legislators, CCL trainers … everyone … is bumfuzzled. obscurity is the breading ground for tyranny. I’ve read that the attorney general is trying to salvage this pathetic law, but half don’t agree with him, and, did the republicans really intend to give this situation (interpretation need/opportunity) to a democrat? this law needs to be repealed and replaced … with a law that does not tyrannize the ‘innocent’ citizen.

    …and if this is actually a deliberate attempt from republicans to get their failed open carry bill advanced into law — shame on them! they blew it! (sometimes i think that americans are too dumb to have a sophisticated form of govt — a constitutional republic!)

    making law is dangerous work. we should do it very slowly and judiciously.

Trackbacks

  1. [...] had no clue of it’s existence till Nicholas Horton from The Arkansas Project broke the story here, he’s usually on top of everything so I’d check back if I were you. Now onto Act [...]

  2. [...] post earlier in the week about Act 746 — and the possibility that it brought constitutional carry to Arkansas — has created a [...]

  3. [...] phone has been ringing off the hook ever since we broke the news a few weeks ago about the meaning of Act 746: namely, that the right to carry a firearm in Arkansas has now been established in law. As I [...]

  4. [...] phone has been ringing off the hook ever since we broke the news a few weeks ago about the meaning of Act 746: namely, that the right to carry a firearm in Arkansas has now been established in [...]

  5. [...] Harrell Program from this past week. We discuss Arkansas’s state-run Obamacare exchange and Act 746 (constitutional carry). [...]

  6. [...] Many folks have asked me to weigh in on Attorney General Dustin McDaniel’s opinion on Act 746. I suppose it’s because we first broke the story about Act 746 here at The Arkansas Project. I called it “the greatest untold story of the 89th General Assembly.” [...]

  7. [...] Many folks have asked me to weigh in on Attorney General Dustin McDaniel’s opinion on Act 746. I suppose it’s because we first broke the story about Act 746 here at The Arkansas Project. I called it “the greatest untold story of the 89th General Assembly.” [...]