Does Act 746 of 2013 allow carrying a concealed handgun without a license?
By David Ferguson
Senator Terry Rice, Senator Linda Collins Smith, and Representative Marcus Richmond filed SB585 to clarify that Arkansas’ Concealed Carry Law does not prohibit a person from carrying a concealed handgun without a license. Representative Arron Pilkington then filed HB1994 which is an identical bill. Neither bill has made it out of committee.
SB585 and HB1994 wouldn’t be needed but for an incorrect assumption in an Attorney General’s Opinion that has cast doubt on the right to carry a concealed handgun without a license.
Whether you like or dislike the idea of people around you having a concealed handgun without a license, I think it has been the law since Act 746 of 2013 was passed. I think a plaintiff would likely prevail in court to allow concealed carry without a license. But, I wouldn’t advise anyone to conceal carry without a license until the Attorney General corrects the AG Opinion, a court ruling corrects the opinion, or the legislature passes SB585 or HB1994.
Attorney General Leslie Rutledge does a much better job than many of her predecessors in office, yet, she made a mistake in her analysis of Act 746 of 2013 as it relates to Arkansas’ concealed carry law (§ 5-73-301 et seq.). In AG Opinion 2015-064 she was asked for advice on several issues related to the right to carry a handgun under Act 746 of 2013. I will look only at the part concerning whether a person must have a concealed carry license to carry a concealed handgun. The opinion says:
Fourth, the laws requiring a license to carry a concealed handgun still have full force and effect. Nothing in Act 746, § 5-73-120(a), or this opinion is intended to suggest that a person may carry a concealed handgun in public without a properly issued concealed-carry license. A person may not lawfully carry a concealed handgun in public without a properly issued concealed-carry license. I believe this necessarily follows from the concealed-carry licensing scheme that predates Act 746 and that, in my opinion, was unaffected by Act 746.
The Attorney General’s mistake was an incorrect assumption about what the concealed carry law does. The opinion assumes the concealed carry license law acts as a prohibition to carrying a concealed handgun without a license. That was never the case.
I reviewed all twenty-three-sections of the concealed carry law (§ 5-73-301 through § 5-73-323). Nowhere does it say you can’t carry a concealed handgun without a license. In addition, § 5-73-305 is the only penalty in the concealed carry law, and it only penalizes providing false information on an application.
Why didn’t the concealed carry law include a prohibition and what prevented a person from carrying a concealed handgun in the first place?
The concealed carry law was a response to the prohibition in § 5-73-120, the offence of “Carrying a Weapon.” The offense “Carrying a Weapon” prohibited you from carrying a handgun, even for self-protection (whether concealed or unconcealed). If you were carrying a handgun, you were guilty, unless you were successful in raising one of several defenses. Because the offence of Carrying a Weapon kept you from carrying a handgun for self-protection, the concealed carry law provided an avenue for self-defense.
The concealed carry law was never a prohibition against carrying a concealed handgun without a license. Instead, it was a way to carry a handgun without being prosecuted under § 5-73-120, the offence of “Carrying a Weapon.”
The offense of “Carrying a weapon” as it read when the concealed carry license was adopted said:
(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 employ the handgun, knife, or club as a weapon against a person.
Act 746 of 2013 substantially changed the offense of “Carrying a weapon.” No longer is the mere fact that you are carrying a handgun sufficient to charge you with an offense. To be convicted of the offence of Carrying a Weapon the prosecutor must prove you were carrying the handgun with the intent of employing it unlawfully. The offense now reads:
(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.
Some have suggested the right to carry concealed without a license would conflict with having a concealed carry license law. That is not true. There is no conflict. The concealed carry law still has a purpose.
- The Arkansas concealed carry license can be used in other states that recognize Arkansas’ license as valid in their state.
- There are other Arkansas laws still prohibiting carrying a handgun in certain places, for example: “ 5-73-122. Carrying a firearm in publicly owned buildings or facilities”. A new, so called, enhanced carry license will allow licensees to concealed carry in some of those places.
Can everyone carry? NO. Arkansas law still prohibits some persons from carrying a handgun.
SB585 and HB1994 shouldn’t be necessary. But the bills are a way to quickly resolve the incorrect conclusion in AG Opinion 2015-064.
Many of your legislators are hoping these bills stay in committee so they will not have to vote on affirming that Act 746 of 2013 brought constitutional carry to Arkansas. (Constitutional carry: the right to carry (concealed or unconcealed) without government permission.)
Remember U.S. Senator Bernie Sanders’ home state of Vermont has constitutional carry. Our neighbors Mississippi and Missouri have constitutional carry. Several other states have constitutional carry and other states are on the way to passing it. Arkansas passed constitutional carry four years ago, but it has not been recognized because of the AG Opinion.
Just because my opinion agrees with constitutional carry, does not mean I can be dismissed as the kind of stereotype Second Amendment advocate liberals try to portray. I don’t carry a handgun. I don’ hunt. And, I know about what it is like to be at a shooting scene, because as a child I was present when a great uncle used a shotgun to kill himself and I remember everything.
If I carried a handgun I would look like one of those teenagers with their britches down to their knees and it would probably interfere with the farm tools I carry. I don’t hunt because when I was growing up I had to work during hunting season and I would be too impatient to take it up now. Yes, my great uncle killed himself with a shotgun when I was in the house and I saw too much, but he was going to kill himself that day with or without a gun, and a relative has had that shotgun and has safely used it for hunting for decades.
I have great respect for our Bill of Rights. Your Second Amendment rights should not be infringed by a misinterpretation of Arkansas’ concealed carry license law.
THANK YOU TO THESE PRO-SECOND AMENDMENT LEGISLATORS
Thank you Senator Terry Rice, Senator Linda Collins-Smith, Representative Marcus Richmond and Representative Aaron Pilkington for trying to clean up the mistake made in the AG Opinion. Thank you for being among the few to stand up for Act 746 and our Second Amendment rights.