Schrödinger’s Open Carry in Arkansas

Before I get into the meat of Act 746 of Arkansas’s 89th General Assembly (on which both Clayton Cramer and Sebastian and Bitter have recently written), let me congratulate Illinois on its actual passage–over the governor’s vet0–of a shall-issue concealed carry licensing scheme. Welcome to the club!

Now, here in Arkansas, much hullabaloo has been made over Act 746, which went into effect on July 1st. That act changed the language in Arkansas’s law regarding the offense of carrying a weapon (Ark. Code Ann. § 5-73-120), and in the law governing possession of handguns on school property (Ark. Code Ann. § 5-73-119).

The main issue is with § 5-73-120, which previously read:

(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.

(b) As used in this section:

(1) “Club” means . . . ;

(2) “Handgun” means . . . ; and

(3)(A) “Knife” means . . . .

(B) “Knife” includes . . . .

(c) It is a defense to a prosecution under this section that at the time of the act of carrying a weapon:

. . .

(4) The person is carrying a weapon when upon a journey, unless the journey is through a commercial airport when presenting at the security checkpoint in the airport or is in the person’s checked baggage and is not a lawfully declared weapon; . . .

Note that though this section provided the “journey” defense, subsection (b) did not actually define what qualified as a journey.

As of July 1st, the statute, as amended by Act 746, 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.

. . .

(b) As used in this section:

. . .

(3) “Journey” means travel beyond the county in which a person lives; and

. . .

(c) It is permissible to carry a handgun under this section that if at the time of the act of carrying a weapon:

. . .

(4) The person is carrying a weapon when upon a journey, unless the journey is through a commercial airport when presenting at the security checkpoint in the airport or is in the person’s checked baggage and is not a lawfully declared weapon; . . . [emphasis added]

So, the amended statute now defines journey, changes defenses to carrying a weapon to when it is permissible to carry a weapon, and adds what appears to be a mens rea element to the offense itself–the person’s purpose must be to unlawfully employ the handgun.

The situation is further muddled by AG Dustin McDaniel’s official opinion on the new journey provision of § 5-73-120, delivered in response to a state senator’s request for clarification of the meaning of the journey provision. McDaniel is very careful in his opinion to limit it to the meaning of this provision–in footnote 7, he states:

The act defines as one element of a possession offense under subsection 5-73-120(a) having “a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.” Acts 2013, No. 746, § 2 (new language underlined). Although one might debate the significance, if any, of this change in terminology, it is clearly immaterial to your question.

Because the state senator only asked about the journey provision, McDaniel dodged the more material question of whether the changes to § 5-73-120(a) by themselves decriminalize open carry in Arkansas.

I will remind you, gentle reader, that I am a law student–not a lawyer–and nothing in this post is offered as legal advice.

That disclaimer out of the way, I will say that I don’t plan on being the test case.

When will the racism stop?

I just got an email regarding an “incident” involving students at my university (though apparently not at the law school):

About 2:30 p.m. today, May 8, an incident involving three UALR students occurred at the intersection of Anna and Lucie Streets, two blocks east of Fair Park Boulevard.  The students were approached and robbed by a black male armed with a handgun, wearing a dark gray hoodie, medium build, about 5’8.”

The suspect took the victims’ property and fled the scene on a motorcycle. If you have any information regarding the incident, call the Little Rock Police Department at 371-4660.

[Emphasis added]

Have we learned nothing from the Martin-Zimmerman incident at all?

Just cause a black guy is wearing a hoodie, they go and assume he’s a criminal!

Oh, wait. Maybe it was the armed robbery.

We may never know!

Gell-Mann amnesia strikes again!

In his 2002 speech* “Why Speculate?” Michael Crichton brings up an interesting effect:

Briefly stated, the Gell-Mann Amnesia effect is as follows. You open the newspaper to an article on some subject you know well. In Murray’s case, physics. In mine, show business. You read the article and see the journalist has absolutely no understanding of either the facts or the issues. Often, the article is so wrong it actually presents the story backward—reversing cause and effect. I call these the “wet streets cause rain” stories. Paper’s full of them.
In any case, you read with exasperation or amusement the multiple errors in a story, and then turn the page to national or international affairs, and read as if the rest of the newspaper was somehow more accurate about Palestine than the baloney you just read. You turn the page, and forget what you know.

The more widespread usage of the internet becomes, the more this effect’s prevalence becomes striking; I bring it up today because of the NYT’s attempt to paint North Carolina CCW holders as criminals.

Bob Owens comes to the same conclusions as Crichton.

I can attest to the same thing (and the more I learn about varied subjects, the more obvious the lack of competence becomes). Stories about guns are rarely correct. Stories about chemical engineering are likewise badly researched (journalism majors are bad at engineering? Go figure!). Stories about Japan are sometimes correct, but more often than not have a few factual errors. Reporting on any kind of video game is laughable. And I’m sure the more I learn about the law, the more ridiculous reporting on the law will become.

If you’re not interested in something in the first place, you’re not going to bother to make sure you get everything right (especially if you’re trying to push some kind of agenda).

The more the old media continues to push this kind of easily debunked nonsense, the more they make themselves irrelevant and hasten their inevitable demise.

*The link goes to the Wayback Machine because Crichton’s website no longer makes his speeches available. If you know what you’re looking for, you can still find classics like “Aliens Cause Global Warming,” though.

Tread on me

As I’ve mentioned before, I’m in my first semester of law school. Like (presumably) the rest of my classmates, I’m over 21 (the minimum age required to be eligible for a CCW license here). The law building is several miles away from the main campus, so none of us interact with the snot-nosed undergrads.

That doesn’t make it any better when one of those same undergrads goes missing (last Wednesday), only to be found murdered in a pond* (Monday).

Fortunately, the state, in its infinite wisdom, has decided that campuses here are gun-free.

Courtesy Oleg Volk**

Now, violent crime on my campus may be rare (it is; I checked the stats for the last few years, and it’s been uneventful), but that doesn’t mean that students shouldn’t have the right to defend themselves. At the very least, it should be their choice, not some paternalistic legislator with the vapors.

Gawker would have you believe that students are crazed, trigger-happy lunatics ready to attack each other at the slightest provocation; the Register Guard parrots debunked pro-gun control statistics and tries to claim that the mere presence of guns increases the likelihood of “gun death” or injury (somehow I’ve carried for more than a year and yet no “gun death” or injury has happened near me; I must be doing it wrong, I guess).

In the first year after the not-exactly “gun death”-free District of Columbia was forced to comply with the Constitution and allow residents to own guns, homicides fell by 9%. In the year after Virginia rescinded its ban on carrying in bars and restaurants, gun crime at those locations fell by 5.2% (despite claims that blood would run in the streets). In the first six months of this year (as compared to the first six months of last year), there were 14% fewer murders in Chicago (once again, despite claims that the Wild West would return).

Every time a gun-free zone ceases to be so, the gun control advocates wail and gnash their teeth about blood in the streets.

And, every time, it doesn’t happen.

Only a few states allow carry of any kind on their campuses; Students for Concealed Carry on Campus are doing what they can to change that, though it seems it’s an uphill battle.

And via Jake, I learned of another student who, merely because he didn’t happen to be on campus at the time, was able to defend himself; at this point, that’s all anyone at my school is limited to, as well.

Since coming back to school, I’ve complied with the law and haven’t carried while on campus. I didn’t like it, but it’s still the law.

Now I’m more convinced than ever that this law must be changed.

*I’ve been sitting on these links for a while, but this incident finally prompted me into writing.

**Used with permission; for more, visit A Human Right (or Oleg Volk’s blog).

Doublethink on both sides…

Those on the left seem to love the government and think it can do no wrong, but when the state uses its power to execute someone, they get all up in arms and lose their collective minds.

Those on the right are skeptical of the government (in general), think it rarely does the right thing, and hardly does anything well, but when the state decides to execute someone, they are (mostly) fine with it.

I don’t have any problems with the death penalty per se, but I do think that the state should have to meet a higher burden of proof than in regular cases when seeking it.

I don’t know much about the Troy Davis case; I’m inclined to trust the jury, since that’s what they’re for.

I just found it interesting that in pretty much this sole case, the positions of the parties vis a vis their respect for the government is reversed.

In the future, everyone will be a felon.

Assuming the Computer Fraud and Abuse Act gets amended in the way the government is pushing for, anyway.

Have you ever lied on the internet?

Of course you have. Everyone lies on the internet.

What about terms of use? Have you ever broken those?

Of course you have.

Orin Kerr closes his piece in the WSJ by saying:

Real threats to cybersecurity must be prosecuted. Penalties should be stiff. But Congress must narrow the Computer Fraud and Abuse Act before enhancing its penalties. There’s no reason to make breaching a promise a federal case, and certainly not a felony crime.

We don’t need more felonies just so that overzealous prosecutors can look like they’re being tough on crime.

Good for Bungie!

One of their IT people was carrying in Seattle when a parking lot fight between two men turned into a shootout; he drew his weapon and made a citizen’s arrest of the escaping shooter.

That’s pretty risky, but it seems to have turned out okay. What impressed me is that Bungie doesn’t seem that bothered by it:

This is one of our IT guys. Don't make us make you drop your weapon and turn you over to the cops. http://t.co/YPPR8ov

— Bungie (@Bungie) August 8, 2011

Good for them!

If I ever turn to a life of crime, I’m going to do so in Norway

Since their prisons are nicer than my apartment (H/T Instapundit).

They eat better than I do, too.

Sure, they can’t go where they want when they want, but they get homemade sorbet, have fancy flat screen TVs, can exercise on their climbing wall, and can even use the in-house recording studio and professional mixing board!

That’s not jail; that’s a damn vacation!

To further clarify my opinion on no-knock warrants and overcriminalization

Linoge and Old NFO bring up a couple of points in the comments to my post on no-knock warrants, so I’m going to take more space here to hash out some things.

I mainly think that no-knock warrants in and of themselves are more a symptom of the problem than the actual problem itself; the root cause is the criminalization of damn near everything.

We are often told that ignorance of the law is no excuse; this statement has two main problems.

First, it ignores mens rea, one of the key components of common law.

And the main problem with the claim that “ignorance of the law is no excuse,” is that Title 18 of the United States Code (the criminal & penal section) is 2,725 sections long.

Two thousand. Seven hundred. And twenty-five.

For the most part, ignorance of the law is rational!

Search warrants are required to be reasonable and specific; if you look at the warrant the Dept. of Ed. used to justify their SWAT raid the other day, it’s quite specific.

It specifies practically every item that someone’s house would contain (especially when it gets down to the electronic equipment)!

If everything but the clothes on your back (probably) and your furniture (maybe) are to be seized by the police, then practically anything you do between the announcement that the cops are there with a warrant and when you answer the door could be destruction of evidence.

So obviously, the police have no choice but to bust down your door and charge in with rifles at the ready; you’re destroying evidence!

I don’t see any effective way to reduce the number and scope of the laws on the books; any time something bad happens, there’s a big clamor for new laws to make this tragedy (whatever it is) the last of its kind, so won’t you please make bullying illegal, or making fun of people on the internet illegal, or whatever, it’s for the children!

And since everyone loves children, the laws get enacted, even though they’re badly written and vague and overbroad.

Then the rest of us are stuck rationally ignorant, hoping that we’ve done nothing to draw Johnny Law’s attention to ourselves, and that no SWAT team will kick in our doors in the middle of the night.

If the man goes through your life with a fine-toothed comb, he’ll find something that you did that broke the law, and then he’ll crucify you for it. The war on drugs has made this painfully evident, and with the ever-increasing number of federal agencies with police powers and SWAT teams, the war on everything else will take care of the rest of us.

Defining ‘violent felony’ down

At the Supreme Court.

Yes, running from the cops is now a violent felony. Does this mean that they’ll send SWAT teams on chases? Or to kick in the doors of people who evade capture?

The NYT says, “The law defines violent felonies as including burglary, arson and other ‘conduct that presents a serious potential risk of physical injury to another.'”

That seems vague and overbroad, ripe for exploitation by that bane of the rule of law, prosecutorial discretion.