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GENERAL PRACTICE LAW FIRM

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Are Arkansans Getting Carried Away? (with gun rights)

Posted on October 3, 2013 at 12:04 PM
There has been a lot of talk about the "technical corrections" made to the offense 5-73-120, carrying a weapon.. Most of this talk concerns whether or not open carry now exists in Arkansas, despite a bill allowing such not passing during the same year in which the "technical corrections" bill did pass. The new law is already in effect and has been since July. Prior to the new changes coming into effect, the Attorney General of the State of Arkansas issued an opinion stating that the new changes did not permit open carry. However, his opinion simply addressed the clarification of "journey", a word previously without hard definition when it came to this law. Now the definition of "journey" is clearly defined as "travel beyond the county in which a person lives". The question proposed to the Attorney General concerned this provision, and his opinion was based on this provision alone. The actual provision which makes way for open carry is below:

5-73-120.  Carrying a weapon.

  (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.

The addition of the word "unlawfully" is what the big deal is about. Prior to the addition of that word the statute read like this :

" a purpose to employ the handgun, knife, or club as a weapon against a person"

The difference here is monumental. First the previous definition did not differentiate between the purpose for employing the weapon. This meant that as long as you had a weapon described in the statute (i.e. rifles, not "a barrel length of less than twelve inches", did not apply), and you had any purpose of using it against a person (not wild dogs, but homo sapiens) you are guilty of this offense. FYI- carrying a handgun to defend yourself against a person was illegal under the previous law. Now that the word "unlawfully" is placed in the statute if the purpose for carrying the weapon is to employ it against a person in lawful self defense, those actions would not be in violation of the law ;every one gets to carry a weapon for self defense unless another law prohibits such, i.e. no guns at schools, no guns for felons, etc. Now the tricky part.

No Court has ruled upon this statute in its newest incarnation. A Court may find that the law did not have the effect we just described. There is an argument to be made that the law never intended this and those who make that argument will point to the failure of the open carry bill and the title of this bill only stating that it was to make "technical corrections". However, this would be hard as the plain language of the law is what must be looked at first and it seems to be unambiguous (no ambiguity = no further review). Also, if a Court did some how get around the plain language, a defendant would still have the argument that it is an unconstitutionally vague. Overall the law works like this- if there is no law prohibiting the action the action is legal (please note not all law is statutory). In the case here there no appears to be no law prohibiting the carry of a weapon, concealed or not, in non-prohibited places, by non-prohibited people, for lawful purposes (including self defense). Full statute below:

5-73-120.  Carrying a weapon.

  (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:

   (1) "Club" means any instrument that is specially designed, made, or adapted for the purpose of inflicting serious physical injury or death by striking, including a blackjack, billie, and sap;

   (2) "Handgun" means any firearm with a barrel length of less than twelve inches (12'') that is designed, made, or adapted to be fired with one (1) hand;

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

   (4) "Knife" means any bladed hand instrument three inches (3'') or longer that is capable of inflicting serious physical injury or death by cutting or stabbing, including a dirk, a sword or spear in a cane, a razor, an ice pick, a throwing star, a switchblade, and a butterfly knife.

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

   (1) The person is in his or her own dwelling or place of business or on property in which he or she has a possessory or proprietary interest;

   (2) The person is a law enforcement officer, correctional officer, or member of the armed forces acting in the course and scope of his or her official duties;

   (3) The person is assisting a law enforcement officer, correctional officer, or member of the armed forces acting in the course and scope of his or her official duties pursuant to the direction or request of the law enforcement officer, correctional officer, or member of the armed forces;

   (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;

   (5) The person is a registered commissioned security guard acting in the course and scope of his or her duties;

   (6) The person is hunting game with a handgun that may be hunted with a handgun under rules and regulations of the Arkansas State Game and Fish Commission or is en route to or from a hunting area for the purpose of hunting game with a handgun;

   (7) The person is a certified law enforcement officer;

   (8) The person is in possession of a concealed handgun and has a valid license to carry a concealed handgun under § 5-73-301 et seq., or recognized under § 5-73-321 and is not in a prohibited place as defined by § 5-73-306;

   (9) The person is a prosecuting attorney or deputy prosecuting attorney carrying a firearm under § 16-21-147; or

   (10) The person is in possession of a handgun and is a retired law enforcement officer with a valid concealed carry authorization issued under federal or state law.

(d) Carrying a weapon is a Class A misdemeanor.



*Disclaimer:This blog is not legal advice, but a general explanation of the law that is not specific to your case, if you have one. If you have questions concerning your rights, a recent police interaction or any other legal issue please contact either General Practice Law Firm or another attorney for a proper application of the law to your case.

Categories: Arkansas, Arkansas laws, Felony, firearms, guns, legislature, possession

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