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Leslie Rutledge: Arkansas Law Allows ‘Open Carry’ of Guns

4 min read

LITTLE ROCK – Arkansas Attorney General Leslie Rutledge says a 2013 law allows someone to openly carry a handgun as long as they don’t plan to illegally use it against another person.

The Republican said in an advisory opinion Friday that the law generally allows “open carry,” but cautioned that other laws limiting handguns such as a ban on them on Capitol grounds and at schools are still in effect. She also noted that private property owners can still prohibit open carry of handguns.

More: Read the complete opinion and see an excerpt at the end of this story.

Rutledge’s non-binding opinion is a reversal from her Democratic predecessor, former Attorney General Dustin McDaniel, who said in 2013 the law didn’t allow open carry.

Rutledge also cautioned that police may legally ask about someone’s purpose if the person is openly carrying a handgun.

An Excerpt of the Attroney General’s Advisory Opinion

(Below is an excerpt of the attorney general’s advisory opinion on open carry. You can read the full opinion here.)

Act 746 has created some confusion among both the people of Arkansas and law enforcement in Arkansas on these questions. Ordinary Arkansans want to know where and when they may legally possess a handgun. Arkansas law enforcement wants to understand what the law does and does not prohibit so that law enforcement can continue to keep us safe while respecting the rights of all Arkansans.  

Ultimately, the confusion created would be best alleviated by additional legislative action to clarify what Act 746 was trying to accomplish. Nonetheless, my opinion below (and the attached addendum) is intended to provide as much clarity as possible to both law enforcement and ordinary citizens by explaining how I believe Act 746 currently bears on the ability of Arkansans to legally possess handguns on their persons and in their vehicles.

While I do not encourage “open carry,” it is my opinion that if a person does not have the intent to “attempt to unlawfully employ a handgun…as a weapon against [another],” he or she may “possess a handgun…on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use” without violating § 5-73-120(a) as amended by Act 746. That means in general merely possessing a handgun on your person or in your vehicle does not violate § 5-73-120(a) and may be done if it does not violate other laws or regulations. However, there are four critical caveats to my opinion:

First, any person who carries a handgun should be aware that a law enforcement officer might lawfully inquire into that person’s purpose. Determining culpability or potential culpability under § 5-73-120(a) is initially a matter for law enforcement following guidelines that routinely apply when investigating a misdemeanor involving the danger of forcible injury to persons. A law enforcement officer may stop and detain any person reasonably suspected of violating § 5-73-120(a) if necessary to identify the person or determine the lawfulness of his or her conduct.

Whether an officer has reasonable suspicion will depend upon a number of circumstance-specific factors. Some of these factors are recounted in Ark. Code Ann. § 16-81-203 (Repl. 2005), including: (1) the demeanor of the suspect; (2) the gait and manner of the suspect; (3) any information received from third persons; and (4) the suspect’s proximity to known criminal conduct.  

Second, other statutes prohibit possession of a handgun in certain circumstances regardless of whether a person has the intent to use a handgun unlawfully. Those statutes still have full force and effect. For example, Ark. Code Ann. § 5-73-122(a)(1) prohibits (with exceptions not relevant here) possessing a deadly weapon “in any publicly owned building or facility or on the State Capitol grounds.” So a person could not lawfully bring a handgun onto the State Capitol grounds even though doing so wouldn’t necessarily cause a violation of § 5-73-120(a). I provide a non-exhaustive list of those statutes in an Addendum to this opinion. I have summarized the principal statutes that make it unlawful to carry a firearm, notwithstanding the absence of a purpose prohibited by § 5-73-120(a).

Third, a private property owner or occupant is still entitled to keep handguns (and other firearms) and persons with handguns (and other firearms) off his, her, or its property. If a person enters or stays on private property against the owner’s or occupant’s stated desire that he or she not enter or that he or she leaves, that person may be guilty of criminal trespass. See Ark. Code Ann. § 5-39-203 (Repl. 2013).

Fourth, the laws requiring a license to carry a concealed handgun still have full force and effect. Nothing in Act 746, § 5-73-120(a), or this opinion is intended to suggest that a person may carry a concealed handgun in public without a properly issued concealed-carry license. A person may not lawfully carry a concealed handgun in public without a properly issued concealed-carry license. I believe this necessarily follows from the concealed-carry licensing scheme that predates Act 746 and that, in my opinion, was unaffected by Act 746.

(Copyright 2015 The Associated Press. All rights reserved. This material may not be published, rewritten, broadcast or distributed.)
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