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.

I’m of mixed feelings about the 7th Cir.’s holding in Moore v. Madigan

One the one hand, anti-gun wailing and gnashing of teeth is like music to my ears (the decision is here). Though gun control’s not quite dead, it’s definitely on life support.

On the other hand, this has thrown a wrench into a certain project I’ve left undescribed (see fn 1). Between this case, the 2d Cir.’s holding in Kachalsky, and whatever the 9th Cir. holds in Richards v. Prieto (assuming it’s decided next semester-ish), I’m going to have to rework substantial sections.

On the gripping hand, my project not only turned out to be timely, but by the time it’s done, it may even be on a circuit split!

And with that said, those astute readers of mine will likely have deduced the general subject of my law review article.

Now, back to studying. One more exam to go, and then this semester will be officially over.

Illinois Gov. Quinn is living in the past

And he’s proud of it (H/T DooT):

“The concept of concealed, loaded hand guns in the possession of private citizens does not enhance public safety, on the contrary it increases danger for everyday people as they go about their lives,” Quinn said. “I don’t think we’re in the business of trying to increase danger to the people of Illinois. We want to work with our law enforcement and prevent bad things from happening. I think the passage of this law by the General Assembly would be most unwise and they should know where they governor stands and where the people stand.”

If that were the case, you would expect the 48 states that allow concealed carry to be bloodbaths, especially when compared to places like Chicago.

The governor even trotted out the widow of a slain Chicago police officer, who said, “I cannot imagine a reason you need to carry a concealed, loaded weapon unless you’re willing to use it on another human being.”

I think there must be something wrong with her imagination; concealed carry advocates don’t want to carry guns (Loaded guns, even! Oh noes!) so that they can shoot random people; the whole idea is that you’re prepared in case some miscreant attacks you (no one deserves to be mugged, attacked, raped, or anything else, regardless of whether they’re in a bad neighborhood or not).

The whole reason to carry a concealed, loaded weapon is to use it (as a last resort) to defend yourself against an animal in human clothing that has chosen to disregard the law.

Proponents of gun control claim that no one should be shot over $50, or over a watch, or over a game console, or over anything else; that it’s the fault of the victim for defending himself against an attack. He should have just given the attacker what he wanted, instead of retaliating with deadly force.

Compliance is no guarantee of survival; if the criminal didn’t want to get shot over $50, then he should have thought of that before he decided to threaten someone who turned out to be prepared to defend themselves.

The threat of violence does not entitle the law-breaking to the fruits of another’s labor (like Linoge said, that’s essentially slavery).

Also, I’ll believe that concealed carry doesn’t make people safer just as soon as those who say so stop hiding behind armed bodyguards.