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Constitutional Carry: Governor’s Impression or Legislative Intent?

Updated: Apr 13

A new map of Arkansas.

A new map of Arkansas.

Our post earlier in the week about Act 746 — and the possibility that it brought constitutional carry to Arkansas — has created a bit of a stir. In fact, that story has gotten more pageviews than any story in the history of The Arkansas Project, even including the fabled Kinkade Era. This is no small accomplishment.

Our story has been referenced by a multitude of websites and newspapers; it was even a brief topic of discussion on KARK-4 this morning. That discussion has often invoked the idea of “legislative intent.” Unfortunately, some have confused legislative intent with gubernatorial intent. These two ideas are very different.

For instance, Matt Decample, the governor’s spokesman, told The City Wire yesterday that the governor didn’t understand the full implications of the law when he signed it:

DeCample emphasized that Beebe did not sign the law with the understanding that it could be interpreted as allowing people to openly carry firearms in public places. “You’re not talking about a legal interpretation, you’re talking about one interested party. You don’t know how anyone’s going to interpret a law.”

Of course you don’t know how anyone’s going to interpret a law: all you can do is make reasonable guesses. In fact, the governor, or his spokesman, is entitled to say whatever he’d like about Act 746 or anything else — they are entitled to their own opinions. There is, however, no constitutional right or established legal doctrine that allows the governor to determine the ultimate meaning of the law simply on the basis of what was going through his mind when he signed a bill. For instance, if Act 746 gets challenged in court — which it almost certainly will — does the governor envision a judge saying, “Hmm, I wonder what was going through the governor’s mind when he signed this piece of paper?” Presumably not: a court will look at the language the legislature used when it wrote and passed the law, and perhaps the court will draw inferences about legislative intent from the bill’s language. But it is essentially irrelevant what the governor thought when he signed the bill, or indeed what he thinks now.

However, for those who are curious about legislative intent, a brief historical excursion might be helpful.

In 2011, Rep. Denny Altes — lead sponsor of what is now Act 746 — filed a bill known as The Defensive Carry Restoration Act. This bill, according to Arkansas Carry, would have decriminalized the possession of a gun as well. It didn’t pass, but it certainly demonstrates that Rep. Altes is sympathetic to expanding our Second Amendment rights.

As for the new law, Act 746, it accomplishes several goals:

1. A journey is defined as traveling outside of a person’s home county;

2. Possession of a handgun is decriminalized; and

3. The act reaffirms the right to carry by saying “it is permissible to carry a handgun;” previously, the statute had outlined exceptions to prosecution, which is a significantly weaker protection.

Denny Altes also changed the section of 5-73-120 that originally was a list of “defenses to prosecution.” By changing this language from “defense to prosecution” to places and situations that were “permissible” to possess a weapon, he further shows his intent to remove any criminality of carrying a handgun in self-defense.

This certainly seems to add weight to the argument that the act was meant to do what it says it does — to decriminalize possession of a firearm.

It’s remarkable that so many pundits are missing this part of the story — the definition of a “journey” is only part of the bill, and not even the most significant part. As I wrote before, the law now requires that prosecutors prove an unlicensed gun carrier intended to use that firearm “unlawfully.” Unlawful intent is now a prerequisite for being charged with a crime for possessing a gun. In other words: you can carry a gun, without a license, so long as you aren’t intending to use it to commit a crime. This is the part of the law that makes Act 746 universal constitutional carry.

Today, in the Jonesboro Sun, State Police Director Stan Witt responded specifically to our coverage of Act 746 and said we are wrong:

This kind of got twisted around in the media…It’s kind of been twisted where that’s construed as open carry: you can just strap a gun on while you’re going down the road, and you can get out and go in a [convenience store] with your gun whether you have a concealed carry permit or not. That’s not true.The journey law strictly deals with you have a firearm in your vehicle. If you have it strapped on your leg, that’s fine; but once you get out of that car you have to leave that gun in that car unless you have a concealed handgun carry license. There is no open carry law.

Unfortunately, Director Witt, much like the media, has overlooked the other two provisions of the law that decriminalize possession — in or outside of your home county. He also failed to cite the section of the journey law that says it only applies to vehicles — perhaps because it doesn’t exist. There’s no reason to think a journey would end when someone exits a car. As a general matter, it shouldn’t take a Ph.D. to understand that a journey ends when someone gets back home.

According to the report, Witt “noted that his agency opposed legislation in the recent legislative session that would have permitted open carry of handguns.” But ironically, Arkansas Carry says Rep. Altes worked closely with the Arkansas State Police in drafting his bill:

[Rep. Altes] gave the bill to the Arkansas State Police and their legal staff and worked with them on the language; it was carefully vetted by that department. He then gave it to sheriffs across the state, and they had no problems with it.

No doubt some gun-rights opponents are scurrying to request an opinion on Act 746 from the Attorney General. But Arkansas Carry says Senator Jake Files previously requested an Attorney General opinion on their behalf, seeking a definition of the word “journey.” The result? AG Dustin McDaniel declined to define the word, saying that a definition should come from the legislature. Arkansas Carry says they then worked with the AG’s staff to construct the definition of a journey that we now see in Act 746. It therefore seems uncertain that a subsequent AG opinion would undercut the law.

At the end of the day, it won’t matter what I, Arkansas Carry, Governor Beebe or Stan Witt says — or even what Dustin McDaniel says. What will matter is what the law, as interpreted by a court, says. I tend to think that a careful court will see very clear, very strict language that was inserted with a specific purpose: namely, the decriminalization of firearm possession and the upholding of Arkansans’ constitutional rights.

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