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.

[Ir]Rational Basis

Via Sebastian and Prof. Volokh, we learn that the Fifth Circuit held in NRA v. BATF that the federal statute forbidding FFL sales of handguns to 18-20 year olds is constitutional.*0

I’m not going to delve into the analysis here,*1 but the Court eventually decides that,

In harmony with well-developed principles that have guided our interpretation of the First Amendment, we believe that a law impinging upon the Second Amendment right must be reviewed under a properly tuned level of scrutiny—i.e., a level that is proportionate to the severity of the burden that the law imposes on the right.*2

The Court applies intermediate scrutiny, and ultimately holds that the prohibition on FFL sales of handguns to 18-20 year olds is constitutional (there is a “reasonable fit between the law and an important government objective”*3). Congress determined that the purchase of handguns by minors*4 is a safety problem (in that it exacerbates their impulsive, violent tendencies, or something), and that prohibiting such purposes is the best way to address that problem is to prevent FFLs from selling handguns to minors.*5 The Court lays out this determination and Congress’s narrow response to it succinctly:

Overall, the government has marshaled evidence showing that Congress was focused on a particular problem: young persons under 21, who are immature and prone to violence, easily accessing handguns, which facilitate violent crime, primarily by way of FFLs. Accordingly, Congress restricted the ability of young persons under 21 to purchase handguns from FFLs. [emphasis in original]*6

The Court defers to Congress’s determination, and upholds 18 U.S.C. § 922 (b)(1)’s prohibition on FFL sales of handguns to those under 21. The government interest is sufficiently narrow, and the means are reasonably adapted to that interest, so intermediate scrutiny is no bar.

The Court then looks at the NRA’s claim as an equal protection matter, and that claim fails under rational basis review (because, unlike race or sex, age is not a suspect classification*7).*8

However, possession/ownership of handguns by those aged 18-20 is (in most states, and under federal law) not illegal. Congress only prohibited (and only intended to prohibit) those persons from buying their handguns through FFLs. If you’re 18 and you receive a handgun as a gift, you’re fine.*9 If you’re 19 and you buy a handgun from a private person, you’re still fine.*10

Hell, you can even tell someone 21 or older to buy the handgun and then pay them for it!*11

Well, two out of three ain’t bad, I guess.*12

So it’s legal for 18-20 year olds to possess handguns, but it’s illegal for them to actually try to buy them from an FFL, or to get someone else to buy them from an FFL.

If you’re 18-20, I hope you know someone who’s generous or looking to sell a handgun they already have – if not, there’s not really any other way for you to legally acquire one.*13

Ladies and Gentlemen, I give you “irrational basis.”*14

*0 Just for the record, I’m still a law student. None of this is legal advice. If you take any of this as legal advice, then on your own head be it.

*1 For reasons I am not currently willing to go into, but will eventually explain. In mid-March/April of 2013, I think.

*2 N.R.A. v. B.A.T.F., No. 11-10959, slip op. at 18 (5th Cir. 2012).

*3 Id. at 33.

*4 The Court in N.R.A. looks at age of majority throughout common law history and determines that it has traditionally and historically began at 21.

*5 And lo, the 1968 GCA and its prohibition on FFL handgun sales to minors heralded the end of youthful violence, and an era of peace and goodwill towards all descended upon the land. Truly, we live in an enlightened age.

*6 Id. at 35.

*7 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000).

*8 N.R.A. at 40.

*9  So long as you’re not a prohibited person and it’s legal in your jurisdiction, of course.

*10 Same disclaimer as before, but with an added disclaimer about the legality of private sales in your jurisdiction.

*11 DO NOT DO THIS. This is a felony straw purchase, and both you (the actual buyer) and the person you get to buy it for you (the straw buyer) will be awarded an all-expenses paid trip to federal prison. Again, DO NOT DO THIS.

*12 Now, aren’t you glad I didn’t link to a Meat Loaf song?

*13 It’s like if  18-20 year olds could possess/drink booze, but were prohibited from buying it or getting others to buy it for them. Sure, it’s technically legal, but it’s a major PITA to actually do what you’re legally entitled to do.

*14 It’s the Chewbacca defense of standards of scrutiny!

The Avengers

I saw it the other day (after my Criminal Law final, I needed a pick-me-up), and it’s as good as everyone else has been saying (and the numbers don’t lie; $800 million worldwide so far is insane).

Tony Stark is great, as usual (he had the best one-liners (though Thor had a pretty good one about Loki early on)), but I was especially surprised with how well Whedon managed to make the Hulk an actual character (while he was enraged and green, I mean).

My only real complaint was that the fight between Thor and Iron Man was so dark. It probably looked fine in regular vision, but because of the 3D glasses, it was really hard to see much of anything in that scene.

We’ve come a long way from the superhero movies of the 90s. A very long way.

Okay, back to studying.

More on the coming riots in Florida

The Occupy Wall Street hooligans have already proto-rioted in NYC; Politico and Al Sharpton are agitating for an emotional response (as are the many crazies on twitter); and the New Black Panther Party has posted a $10,000 reward  for the “capture” of George Zimmerman.

Once again, I’m only a lowly first-year law student, and only have had 2/3 of a semester of criminal law, so if you use any of this work, on your own head be it.

A ten thousand dollar reward for the “capture” of Zimmerman. Under Florida law, kidnapping is:

(1)(a) The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:

1. Hold for ransom or reward or as a shield or hostage.

2. Commit or facilitate commission of any felony.

3. Inflict bodily harm upon or to terrorize the victim or another person.

4. Interfere with the performance of any governmental or political function.

Fla. Stat. Ann. § 787.01 (West).

I think it’s pretty clear that if someone were to “capture” Zimmerman for the NBPP, they would be guilty of kidnapping.

After my overview of the Florida “stand your ground” laws the other day, I did some more thinking about possible ways Zimmerman could have provoked Martin and lost the protection of the stand your ground provision of the law; all I could come up with was assault, battery, and maybe stalking.

Stalking is actually right out;  a key element in the offense is that the conduct was repeated; if this is the only time Zimmerman ever followed Martin, then he can’t be guilty of stalking him. Fla. Stat. Ann. § 784.048 (West).

Assault is more murky:

An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

Fla. Stat. Ann. § 784.011 (West).

While regular assault is merely a misdemeanor, aggravated assault (F.S.A. § 784.021) is assault with a deadly weapon without intent to kill (or with the intent to commit a felony), and is a third degree felony. Zimmerman would have had to do more than merely follow Martin for his conduct to meet the standard required for an assault. For aggravated assault, Zimmerman would have had to commit the assault with his weapon drawn (or visible); if it was concealed and not used in the assault, it wouldn’t be aggravated assault. Owens v. State, 475 So.2d 1238, 1239 (Fla. 1985). Owens distinguished between an offense committed while carrying a weapon and an offense committed while using a weapon, and held that mere carrying of a weapon was not sufficient.

Battery might work; its elements are relatively simple:

1. Actually and intentionally touches or strikes another person against the will of the other; or

2. Intentionally causes bodily harm to another person.

Fla. Stat. Ann. § 784.03 (West).

The touching element of battery would be satisfied by any physical contact Zimmerman had with Martin, no matter how slight. Johnson v. U.S., 130 S. Ct. 1265, 1269-70 (2010). If Zimmerman so much as grabbed Martin’s arm, or even tapped him on the shoulder, that would constitute battery.

Zimmerman could only have committed aggravated battery by using a deadly weapon in the commission of a battery (or by attempting to cause great bodily harm, permanent disability, or permanent disfigurement) (F.S.A. § 784.045).

As we saw the other day in F.S.A. § 776.013 (2)(c), the presumption that a person had a reasonable fear of death or great bodily harm to himself does not apply when the person who uses the defensive force is engaged in an unlawful activity. If Zimmerman assaulted or battered Martin, then he no longer has that presumption.

However, as I understand it, that does not mean he can’t claim self-defense as a defense to any prosecution; it merely means that he is not presumed to have had a reasonable fear of death or great bodily harm to himself.

If Zimmerman tapped Martin on the shoulder to ask what he was doing, and so battered him and gave up the presumption, and if Zimmerman could convince a jury his fear was reasonable, his killing of Martin still would have been justified.

Given recent witness statements about Zimmerman lying on the ground and yelling for help, with Martin on top of him, beating him up, I think Zimmerman’s lawyer’s statements may be right: this isn’t going to have anything to do with the “stand your ground” part of the law at all; it’s going to be a straight up self-defense case.

And since the race hustlers are involved, I’m afraid we’re going to see riots if Zimmerman’s defense prevails (which, given the witness reports, seems more likely now).

Riots we wouldn’t see if a black guy had killed a white teenager in self-defense.