Skip to comments.Arkansas state representative says Act 746 decriminalizes open carry
Posted on 07/19/2013 8:53:28 AM PDT by marktwain
Gun rights advocates received a big boost yesterday when Arkansas State Representative Nate Bell, R-Mena, gave his opinion that Act 746 will decriminalize open carry on August 16th, 2013, the date it takes effect.
Representative Bell was one of many sponsors of HB1700, the enacting bill that passed April 4th, 2013. On a July 16th Facebook post, Bell declares it was the original intent of the sponsors to decriminalize open carry.
It was the intent of the sponsors of Act 746 to decriminalize the open carry of a firearm by persons not prohibited from legally possessing the firearm. Its my belief that the language contained in 5-73-120 (a) will effectively do so when the new law takes effect on August 16.
~ Nate Bell
In May, OpenCarry.Org founder Mike Stollenwerk declared Arkansas will become a Constitutional Carry state on August 16th:
Effective August 15, 2013, when HB 1700 takes effect, any arrest, charge, or conviction for violating § 5-73-120 can only lawfully arise if two elements of the offense are present. First, that a person was carrying one of the specified weapons. And second, that she was doing so with a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.
~ Mike Stollenwerk, OpenCarry.Org founder
But that is where Representative Bell disagrees with gun rights advocates. Nate Bell believes concealed carry without a license is not decriminalized under Act 746. If so, Arkansas will only become an open carry state, not one that celebrates Constitutional Carry.
(Excerpt) Read more at examiner.com ...
De facto open carry should always be a part of concealed carry to avoid accidental criminal exposure.
The anti-gun Attorney General here in Arkansas has already pontificated that this law doesn’t give folks the right to open carry; however, as already mentioned, this law is pretty clear to me that it does just that. And, even though the Republican sponsor disagrees, I think it also eliminates the need for a concealed carry license.
I am curious to see how the courts respond.
We have done alot of pro-gun laws in AR the last session, but we still need to:
1) Reduce fees for AR CHCL from $150.00+ down to say, $20.00.
2) Get rid of "journey" and have true ConCarry.
3) Pass a "castle doctrine" and get rid of "duty to retreat" from our statues. 4) Introduce "Stand your ground" laws, and finally, 5) Federal nullification of gunlaws within the state.
I understand what you are saying, but the AG Dustin McDaniel is NOT going to issue a “gun friendly” on this. It’s going to come down to a court decision, though your advice is well-taken about not being the guinea pig. However, I suspect it will happen sooner rather than later.
>> “Seems pretty clear” does not equal the pain and suffering you will go through as a legal guinea pig.
Yeah, buddy. That’s CRYSTAL clear after watching what happened to GZ.
What is the law in Arkansas now regarding Castle Doctrine?
Say, someone breaks into your home?
I spent some of my teenaged years in Arkansas, and carried a shotgun around the woods all the time. Kids and teachers alike carried shotguns in gun racks to school. I guess no one knew it wasn’t legal.
I suppose this is a dumb question, but I can’t see from the jump link if this specifically allows *concealed carry.* If not, then “constitutional carry” is not the new law of AR.
De facto open carry should always be a part of concealed carry to avoid accidental criminal exposure.
I don't disagree with a word of that, cripplecreek, but believe carryopenly or concealedought to be regarded as legal under both the U.S. Constitution's Second Amendment and each state's similar guarantee of the right to keep and bear arms.
To be realistic, I've got a hunch all that's going to have to wait until after the free states have seceeded from the self-styled "progressive" oligarchy and reasserted our original Constitution.
In the U.S., inspite of what statists may desire, everything is lawful unless there is a law against it.
The original language was this:
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.
The new language is this. Bold added to make the change stand out:
Carrying a weapon.
(a) Arkansas Code § 5-73-120 is amended to read as follows: 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.
This change clarifies the meaning of the law to what was likely the original intent; that a person may not carry a weapon with the intent of using it for unlawful purposes. There does not appear to be other Arkansas law that forbids the carrying of weapons (except in certain named locations). Therefore it appears that Arkansas will have Constitutional carry.
We do not have Castle doctrine "yet".
Disclaimer: I am NOT an attorney. Do not take this post as legal advice without consulting an attorney licensed in the state of Arkansas. This is for informational use only!
Section 5-2-606 of the Arkansas Code provides:
A person is justified in using physical force upon another person to defend himself or herself or a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force by that other person, and the person may use a degree of force that he or she reasonably believes to be necessary.
However, the person may not use deadly physical force except as provided in section 5-2-607. A person is not justified in using physical force upon another person with the purpose to cause physical injury or death to the other person or if the person provokes the use of unlawful physical force by the other person.
A person's use of physical force upon another person is justifiable if the person in good faith withdraws from the encounter and effectively communicates to the other person his or her purpose to withdraw from the encounter; and the other person continues or threatens to continue the use of unlawful physical force; or the physical force involved is the product of a combat by agreement not authorized by law.
Section 5-2-607 of the Arkansas Code provides:
a person is justified in using deadly physical force upon another person if the person reasonably believes: that the other person is committing or about to commit a felony involving force or violence; is using or about to use unlawful deadly physical force; or is imminently endangering the person's life or imminently about to victimize the person from the continuation of a pattern of domestic abuse.
A person may not use deadly physical force in self-defense if he or she knows that he or she can avoid the necessity of using deadly physical force with complete safety by retreating.
However, a person is not required to retreat if the person is: in the person's dwelling and was not the original aggressor; or a law enforcement officer or a person assisting at the direction of a law enforcement officer; or by surrendering possession of property to a person claiming a lawful right to possession of the property.
Thanks for the clarification.
So we sort of do..
If someone breaks into your house.. that’s a felony.
And.. you don’t have the requirement to retreat if you are inside your house... soo..
Actually - that part was simply to shift the burden of proof of “criminal intent” to the police/state. Before, possession of a handgun without a CCW could be considered having “intent” period.
The big part of this legislation was the defining of “journey” from very long-standing existing law. The previous law regarding carrying of weapons stated that one could carry when “on a journey”. A journey had been interpreted many ways - from “50+ miles” to completely ignoring the old law (some even claimed it was repealed with the original Concealed Carry law - but it wasn’t). Without a firm definition of “journey” - the old law was ignored and folks were arrested for open carrying.
Now - the term “journey” is specifically defined as “traveling beyond your county or residence”. The only question now - does that mean you can only open carry when in your vehicle or otherwise actively engaged in the traveling, or can you carry the entire time you are “on the journey” - from the time you leave your home to the time you return....???
What I find hilarious - the bill passed both houses with near unanimous support and the governor signed it without a word.
NOte: This is a relatively "new" law that, upon the face of it sounds reasonable. However the truth is is that it was passed as more of a political statement rather than jurisprudence. I.e.....it hasn't passed muster with case law or even made it into AR Jury instructions yet.
DISCLAIMER: I'm not a lawyer. This post is for informational purposes only. If you have any questions about this post, be sure to consult an attorney licensed to practice law in Arkansas.
§ 5-2-620 - Use of force to defend persons and property within home.
(a) The right of an individual to defend himself or herself and the life of a person or property in the individual's home against harm, injury, or loss by a person unlawfully entering or attempting to enter or intrude into the home is reaffirmed as a fundamental right to be preserved and promoted as a public policy in this state.
(b) There is a legal presumption that any force or means used to accomplish a purpose described in subsection (a) of this section was exercised in a lawful and necessary manner, unless the presumption is overcome by clear and convincing evidence to the contrary.
(c) The public policy stated in subsection (a) of this section shall be strictly complied with by the court and an appropriate instruction of this public policy shall be given to a jury sitting in trial of criminal charges brought in connection with this public policy.
But - as some law enforcement have told me (based on many cases) - here in Arkansas - if you shoot someone breaking into your house, they had darned well fall IN your house. If they are halfway through a window and you pop them - pray they fall in. If they fall outside, a over-zeallous prosecutor may file charges against you.
About a year ago there was a guy here in Arkansas that was drunk and “thought” he was climbing into his own window.
But he entered the wrong apartment and was shot and killed.
Don’t recall any charges against the person living in the apartment.
Basicially I have to retreat if I use a gun whilst over at a relatives house. (it is not MY dwelling).
THis is why we need to have a definative castle doctrine PLUS a stand your ground law.
Case in point...I was invited to relatives house, have a legal invite and right to be there, I shouldn't have to retreat into the house if faced with a forcible, illegaly felony. Ill let the legal eagles chime in ;)