Arkansas to become open carry state on August 15th

Arkansas will become the nation’s 45th open carry state on August 15th of this year. This result arises from the Arkansas legislature’s enactment of HB 1700, a bill sponsored by Representative Denny Altes (R – Fort Smith) which amended Arkansas Code § 5-73-120 (Carrying a weapon).

For many years § 5-73-120 made it unlawful to generally “possesses a handgun, knife, or club on or about his or her person.” But in 2008 the United States Supreme Court ruled in District of Columbia v. Heller that “the Second Amendment provides a prima facie [and fundamental] right to keep and carry weapons in case of confrontation.”

After Heller, gun owners and groups like Arkansas Carry sought reforms to clarify Arkansas carry law and eliminate any statutory requirement that gun owners must have an excuse or license to carry handguns either openly or concealed. And this year the legislature changed the statute to limit the offense to possession “of a handgun, knife, or club on or about his or her person with a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.” [emphasis added].

Arkansas Carry’s Chairman Steve Jones says that

““Representative Denny Altes and Arkansas Carry have always maintained that the Second Amendment and the Arkansas Constitution provides the right to bear arms in public without a permit. HB1700 and the 2008 Heller decision solidifies this right. Denny Altes has clarified that the Second Amendment is our carry law in Arkansas.”

Prior to HB 1700, the main criminal issue pertaining to carrying weapons in § 5-73-120 was whether a person was carrying a handgun, knife, or club on or about his or her person – a single element of offense. Once that element was established, a Defendant could only assert a “defense” that she was carrying pursuant to a number of statutory exceptions such as pursuant to a concealed weapons permit (CWP), travelling on a “journey,” (a term with no statutory definition), etc.

Effective August 15, 2013, when HB 1700 takes effect, any arrest, charge, or conviction for violating § 5-73-120 can only lawfully arise if two elements of the offense are present. First, that a person was carrying one of the specified weapons. And second, that she was doing so “with a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.” [emphasis added].

Notably, HB1700 removed all “defenses” from § 5-73-120. As the statute will no longer set forth any defenses to the crime of carrying a weapon, there can no implication that a reason or “defense” is required to carry a handgun in Arkansas. As a result, on August 15th it will no longer be a crime in Arkansas to generally possess a handgun, knife, or club on or about his or her person, either concealed, or openly.

There will also be no reason to have a concealed weapons permit in Arkansas because § 5-73-120 no longer requires a concealed weapons permit nor any other excuse or justification to possess a handgun, knife, or club on or about his or her person, concealed or openly. Additionally, HB 1700 also repealed the ban on carrying weapons into establishments selling alcoholic beverages.

And because concealed weapon permits are no longer required to carry concealed in Arkansas, the limitations placed upon concealed weapon permit holders at Arkansas Code § 5-73-306 (Prohibited places) are no longer applicable to anyone. It should be noted however, that many prohibitions on carrying handguns in Arkansas still exist.

For example, despite the fact that, like most states, localities are prohibited from regulating the carry of firearms pursuant to Arkansas Code § 14-16-504 (Regulation by Local Unit of Government), Arkansas Code § 5-73-119 (Carrying a firearm in publicly owned buildings or facilities ) prohibits the carrying of firearms in certain specified public facilities, Arkansas Code § 5-73-119 (Handguns — Possession by minor or possession on school property ) heavily regulates the possession of firearms by minors and on K-12 and college grounds, and state courts retain the inherent power to regulate possession of weapons in court facilities. Additionally, persons prohibited by Arkansas or federal law from possessing firearms are prohibited from carrying handguns.

National gun rights groups like OpenCarry.org are hoping to bootstrap this gun rights victory in Arkansas to regain open carry rights in Texas, South Carolina, and Florida either this or next year. OpenCarry.org co-founder John Pierce believes that “the political pressure is growing intense in these three generally pro-gun states to legalize open carry.”

Here is a summary of the effect of HB1700 on the right to carry handguns in Arkansas effective August 15, 2013:

•Carrying handguns openly or concealed in a vehicle or on foot no longer requires any justification, defense, or permit.
•The limitations placed upon CWP holders at Arkansas Code § 5-73-306 (Prohibited places) are no longer applicable as no permit is required to carry concealed handguns in Arkansas.
•There is no longer a prohibition on carrying handguns into establishments selling alcoholic beverages.
•It remains a crime to carry a handgun “with a purpose to attempt to unlawfully employ the handgun as a weapon against a person,” or if the person is prohibited by Arkansas or federal law from possessing a handgun.
•The possession of handguns by minors remains unlawful.
•The possession of handguns in certain specified public facilities, K-12 schools, colleges, and courthouses remains banned or heavily regulated.
•Any detention/arrest of a person for alleged unlawful carriage of a handgun must arise from reasonable suspicion/probable cause, respectively, that the person has committed all the elements of that offense.
•Unlawful detention or arrest of people for merely carrying guns provides the basis for civil actions seeking damages and injunctive relief under Arkansas law as well as the Federal Civil Rights of 1871 at 42 USC 1983, which provides for recovery of attorney’s fees in addition to monetary damages.
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