Open Carry in Arkansas—An Ambiguous Statute

By Laurent Sacharoff · February 13, 2014 · 2014 Ark. L. Notes 1548
In categories: Criminal Law, Snapshot, Students

By Laurent Sacharoff ¹ & Jacob Worlow ²

Sometimes the legislature—well—screws up. It might put language into a statute that has unintended consequences, or language that has two possible interpretations, or language that seems clear but might lead to absurd results. When the legislature drafts unclear criminal statutes, especially those involving guns, the mistakes can have serious consequences.

As residents of Arkansas, we find these resulting statutes to be an affront to clarity, fairness, and good judgment. As a criminal law professor and law student, we find such mistakes lead to complex and interesting issues of statutory interpretation. We will consider here one example, from Arkansas, but to make clear we are not picking on the Arkansas legislature, states ³ and Congress ⁴ make similar mistakes all the time. ⁵

Last year the Arkansas legislature passed a new gun bill that supposedly made only technical changes but may, in fact, have legalized carrying a gun, openly or concealed, without a license. The result was likely unintended by most of the legislature or the governor, who signed the bill, but the language seems to point in that direction. In fact, many prosecutors including our prosecutor here in Washington County have interpreted the statute basically to have legalized carrying a gun in almost all circumstances.

How did we get here? Some very recent history may help.

During the last legislative session, gun rights proponents pushed House Bill 1408, a bill that would have allowed Arkansans to carry handguns openly in certain areas if those individuals first acquired a license to do so. This would have created a more restrictive version of what many refer to as an “open carry” law. The bill they sought did not pass, demonstrating, it seems, the legislature’s reluctance to adopt even a limited version of open carry.

Open carry failed. Or so we thought. The legislature passed another law in the summer of 2013, H.B. 1700, that may have accomplished that very goal, and perhaps even permitted concealed carry without a license. The news that the new statute, whose title expressly says it is only making “technical” changes, will accomplish such a far-reaching change in Arkansas law took many by surprise, including many of the lawmakers who enacted the bill.

The confusion comes because the literal language of the new law points in one direction—toward open carry—whereas the likely purpose of the legislature points another.

First, as to the legislature’s purpose, that body likely intended merely to modernize one of the old statute’s listed exceptions and had no intention to legalize open carry. The old “journey” defense had been a subject of contention in the public and academic realms. The exception allowed one to carry a weapon when traveling on a “journey,” though the statute did not define just what a journey was. ⁶ As “journey” could be subject to wide interpretation, many felt the statute deserved an update. H.B. 1700 updated the statute to define “journey” as “travel beyond the county in which one lives.” ⁷ When we consider this change, along with the failure of the other bill that would have expressly legalized open carry, we see little evidence the legislature intended to legalize all carrying of guns, even without a license.

But the legislature, knowingly or not, also changed the wording in the misdemeanor statute that criminalized carrying a gun without a license, and this change in language has created the mischief. To understand the change, we must wade into the old and new versions of Section 5-73-120, which we will simply call Section 120.

First consider the old Section 120, which made it a crime to possess a handgun with the “purpose” to use it as a weapon “against a person.” ⁸ The language is strange but consider two examples to understand its application. If someone is driving with an unloaded handgun to go hunting, he does not have the purpose to use it as a weapon against a person and therefore does not fall under the statute (deer, however, should remain wary). But if someone carries the handgun intending to rob someone, then he obviously carries it with the purpose to use against another person.

Hunting and robbery are only two extremes of a spectrum, however. In between lies self-defense. Suppose a person who has no license carries a gun just in case someone attacks him with deadly force, and he needs to use his handgun in self-defense? Under the old Section 120, that person would be guilty of a misdemeanor because he is carrying the gun to use “against a person.” The fact that he would be justified in using it makes no difference.

Here is where the new statute brings about an important change.

The new Section 120 changes the language of this purpose element by adding the word “unlawfully.” It is now illegal to possess a handgun only if the person has the “purpose” to use it “unlawfully” against a person. ⁹ Since self-defense is a lawful use, at least as against deadly force or rape, the plain meaning of the statute appears to allow anyone (except certain felons, “incompetents,” etc. ¹⁰) to possess a handgun for self-defense purposes. If so, it would allow open carry and perhaps even concealed carry without a permit as long as the person intends to use it to defend against a deadly attack. And since practically anyone can reasonably say they intend to use the gun for self-defense, that would mean nearly anyone can carry a gun without a permit, open or concealed.

So if the words of the new statute literally permit open carry, is that the end of the analysis?

No. The open-carry argument may run into a problem when a court tries to answer the common-sense and all-important question: What did the Legislature intend? Effecting legislative intent is the “basic” and “ultimate” rule for an Arkansas court when ascribing meaning to a statute. ¹¹ True, the courts generally look first and almost entirely at the plain meaning, but Arkansas courts also consider a broad array of other factors when ascertaining the intent of the legislature, such as the history of the statutes involved, the conditions at the time the law was passed, what will happen if the court interprets it a certain way, and other matters of common knowledge. ¹² And perhaps most important here, courts interpret a statute in context, looking not solely at the words of the particular section but also at how it fits in with the larger statutory context and regulatory regime. ¹³

As noted above, the history of this bill shows the legislature intended to modernize the “journey” exception and nothing else. For example, the very title of the bill calls it, “An act making technical corrections concerning the possession of a handgun and other weapons in certain places; and for other purposes.” ¹⁴ Modernizing the journey exception sounds like a technical correction; legalizing open and concealed carry without a license is no technical correction—rather, it would be a complete overhaul of Arkansas weapons law.

Courts should also look to the history of related bills, and here the legislature recently rejected two, H.B. 1231 and H.B. 1408. H.B. 1231, that would have permitted certain school employees to carry weapons on school grounds as security personnel. ¹⁵ The bill received massive attention from the media prior to its rejection. On the other hand, H.B. 1700 did not receive any considerable media attention prior to the day Governor Beebe signed it, nor does it seem that anyone had even remotely characterized H.B. 1700 as an open carry bill. H.B. 1700’s smooth and silent path to enactment strongly suggests that the legislature did not comprehend any open carry interpretation of the bill.

Even more to the point, the legislature also rejected a law that would have expressly legalized open carry. H.B. 1408 carried the title: “To be known as the permitted open carry act.” ¹⁶ This bill’s enactment would actually have been less expansive than gun rights proponents assert H.B. 1700’s is, as a gun owner would still have to acquire a license before he could carry his handgun in public. ¹⁷ The real open carry bill did not even make it out of committee, while H.B. 1700 received nearly unanimous support from the legislature.

So much for history. Courts should also consider the specific statute in the context of the overall statutory and regulatory regime. Here state law still contains an entire subchapter with 23 sections concerning the issuance of permits for concealed carry. ¹⁸ The sections detail how to get a license, who grants it, the information required, and even what happens if you lose your license. When passing Section 120, the legislature left in place this elaborate mechanism for obtaining a license to carry a concealed handgun. Surely had the legislature intended to allow Section 120 to legalize all carrying of guns for practically anyone, it would have abolished the complex licensing regime, or at least modified it to conform to the new Section 120. It did not do so, strongly showing the legislature did not intend open carry.

The legislative history of the bill points the same direction—against open carry. When he presented the bill to the rest of the legislature, the sponsor of H.B. 1700, Representative Denny Altes, did not characterize the bill as a drastic change to Arkansas gun law. ¹⁹ He began his forty-five second presentation by noting that “this is mostly clean-up language from the state police.” He then quickly described what would become the new “journey” defense, stating that the new language was “their” definition (apparently referring to the Arkansas State Police). Representative Altes did not expressly refer to the “unlawfully” language. Rather, he merely stated that another representative ²⁰ had suggested adding the language on “page two…line thirty-four” –which happened to contain the “unlawfully” language. Rep. Altes made no statement that this “unlawfully” language was significant in any way. He finished by proclaiming, “They’re all fine with this,” referring to the “Sheriff’s Association, the prosecutors, and the chiefs.”

Finally, many of the legislators who passed the bill, including those on the judiciary committee that vetted it, have subsequently said their purpose was to modernize the journey exception and not to legalize open carry. ²¹

We are thus left with two contradictory signs: the plain language of the statute allows practically anyone to carry, openly or concealed, without a license, whereas the legislature almost certainly did not intend such a result. How do we resolve this deadlock?

The answer comes from a legal doctrine called the rule of lenity. This doctrine asserts that ambiguous criminal laws must be interpreted in favor of the defendant. Otherwise, people would be punished for conduct without clear notice that conduct was criminal. Arkansas courts often say they will “strictly” construe penal statutes, resolving all doubts “in favor of the defendant.” ²²

Unfortunately, the Arkansas courts have not consistently applied this “strict” construction. Sometimes the courts will say it will not interpret a statute so strictly so as to supersede the obvious intent of the legislature. ²³ But other times it says that strictly construing a statute means looking only at the plain meaning of the statute’s language, and perhaps interpreting it in the context of the larger statutory regime. ²⁴

It seems to us a court facing a defendant arrested with a gun would interpret the statute based upon its plain meaning. When all is said and done, how can the court punish a person for following the literal and unambiguous meaning of the statute? A person should not be expected to consult the history of the law’s passage, or its political context, to understand what it proscribes. Courts should interpret statutes as written to encourage legislatures to draft their criminal laws more carefully, putting people on clear notice about what constitutes criminal activity.

In other words, the legislature screwed up—with real consequences. As noted above, John Threet, the Washington County Prosecutor, has directed the Sheriff not to arrest those carrying handguns, even without a permit, unless other circumstances suggest the person intends to use the gun to commit a crime such as robbery. Threet also reports that at the last meeting of prosecutors from all 28 judicial districts in Arkansas, only 2 were instructing police or sheriffs to arrest—though he emphasized this was not a formal vote but merely his sense of the room. On the other hand, the local police in Fayetteville, located within Washington County, have been told to continue arresting those with handguns.

Section 120 deserves immediate attention from the legislature. If it wants to legalize open carry, do so openly, as it were, though we would have the legislature not only clarify the law, but restore it to its responsible previous substance—requiring citizens to first acquire a license before carrying a concealed weapon, and banning open carry entirely.