McDaniel: New law does not allow ‘open carry’

by The City Wire staff ([email protected]) 130 views 

Supporters of openly carrying firearms in the state of Arkansas were dealt a blow today when Attorney General Dustin McDaniel said a new state law does not permit any such action.

The law, Act 746, made technical corrections to existing gun laws.

In the opinion, which was requested by Sen. Eddie Joe Williams, R-Cabot, McDaniel said just because someone may be going on a journey, which is defined as "beyond the county in which the person lives," it does not mean that they are able to openly carry a firearm on his or her waist.

"To the contrary, the journey exception applies only to 'travel beyond the county in which a person lives' — a narrow range of activity inconsistent with the concept of 'open carry.' Whether one is 'traveling' beyond his or her county, so as to be on a 'journey' for purposes of Act 746, will be a question of fact determined initially at the time of police intervention," McDaniel noted in the opinion.

McDaniel also said the journey rule generally applied to keeping a weapon within a vehicle, not on an individual.

"Generally, however, it is my opinion that Act 746 does not in itself permit a person to possess a handgun outside of his or her vehicle or other mode of transportation while on a journey outside his or her county of residence. In offering this conclusion, I must stress that Act 746 in no way modifies the rights and obligations conferred upon those individuals who have obtained a concealed handgun permit pursuant to the pertinent provisions of the Arkansas Code.

In discussing how he came to his decision, McDaniel said it was "beyond doubt" that Act 746 does not authorize open-carry, later explaining his reasoning for his position.

"In my opinion, this legislative and judicial history would not support reading the definitional term 'travel' broadly so as to interpret the phrase 'travel beyond the county' as permitting 'open carry.' To the contrary, given the statute’s history, I believe the term 'travel' is properly viewed as reflecting the legislature’s recognition of the 'journey' exception’s historical purpose to allow people to protect themselves from the dangers of the open road. The term should therefore be narrowly construed, in my opinion, to mean the action of moving from one place to another via some mode of transportation. It should not be construed to include any activities incidental to the act of transportation. More specifically in terms of your question, I do not interpret Act 746’s definition of 'journey' as authorizing open-carry."

Steve Jones, chairman of the group Arkansas Carry, has been vocal in his interpretation of the new law, with the group actively pushing not only for Arkansans to open carry, but also for McDaniel to issue an opinion on the matter.

Jones attacked McDaniel's opinion in a Monday (July 8) e-mail to The City Wire.

"Arkansas Carry finds the AG Opinion 2013-047 one of the worst written opinions to ever come out of the Arkansas Attorney General office. Besides being very incoherent, all of the opinions were based on assumptions, and were devoid of examples of pertinent state law or previous judicial rulings."

Jones challenged McDaniel's belief that a journey is to be defined and understood as a vehicular journey, rather than any journey that could take place, such as on foot.

"The Attorney General assumes open carry is illegal, but provides no legal basis for this assumption. The opinion ignores the new definition of the offense of carrying a weapon in Act 746, knowing they would have to address it. The Attorney General also assumes a journey must take place in a vehicle, but provides no legal basis (statutes or court decisions) to back up that laughable claim. The Attorney General fails to provide any legal background showing that open carry is banned in Arkansas."

Jones said Arkansas Carry is encouraging its members to be mindful of McDaniel’s opinion.

“We are informing them of this new opinion, and advising them that law enforcement will look to this opinion when enforcing the law. We have always advised our members to obtain a CHCL permit, because a class will bring you up to date on laws, teach gun safety and allow a person to carry in places not allowed to un-permitted persons to carry (federal school zones),” Jones explained.

Jones did not say whether his organization would pursue legal action in the case.

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