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Dustin McDaniel Is Wrong About Act 746

Updated: Apr 13

Dustin McDaniel, legal wizard.

Many folks have asked me to weigh in on Attorney General Dustin McDaniel’s opinion on Act 746. I suppose it’s because we first broke the story about Act 746 here at The Arkansas Project. I called it “the greatest untold story of the 89th General Assembly.”

After we broke that story, a debate ensued: Governor Beebe weighed in, saying he didn’t really understand the bill to mean what it actually means when he signed it. To recap my response: So what? Beebe’s an executive, not a judge or a legislator that gets to influence how bills are interpreted or written. Attorney General McDaniel plays a similar role, in my view.

The attorney general is a law enforcement executive. He’s not a legislator or a judge. He’s a law enforcer. As such, his opinion isn’t the ultimate authority on Arkansas law. Many politicians and pundits seem to disagree, however. The allegedly pro-gun Senator Jon Woods who voted for Act 746 praised the opinion on Twitter, thanking the AG for “setting the record straight.” Aspiring blogger and all-around liberal Michael Cook also rejoiced, claiming that McDaniel had single-handedly upended the new law:

Good news for our police.  AG opinion says ACT 746 doesn’t allow for “open carry”.  No “open carry” is safer for police officers.  #arleg

I’m glad that Dustin McDaniel has an opinion on Act 746. And I’m glad that his opinion brightened Cook’s miserably liberal day. But Dustin McDaniel doesn’t get to decide what the law is; he only gets to advise others how to enforce it. And, for what it’s worth, I have an opinion as well — and mine happens to be more closely aligned with what the law actually says.

As I’ve previously outlined, the most significant section of Act 746 has nothing to do with the definition of the term “journey” in state law. Governor Beebe has gotten this wrong. The Arkansas State Police have repeatedly gotten this wrong. Unfortunately, McDaniel fell into the same trap — he focused solely on the “journey” issue in his opinion, and he therefore missed the most important change in the law.

To be fair, the McDaniel opinion was spawned by a fairly confusing question from State Senator Eddie Joe Williams. The question reads like this:

Under Act 746, Arkansans are allowed to carry a handgun if the person is on a journey. Journey is no defined to mean “beyond the county in which the person lives.” Is it your opinion that Act 746 now permits a person to be able to carry a handgun, in plain view or concealed, if they leave their county so long as they do not visit locations that prohibit carrying a firearm such as the State Capitol grounds, airports, schools, etc.?

This question demonstrates a fundamental misunderstanding of Act 746: the section of Act 746 that authorizes open (or constitutional) carry is in no way related to the “journey” definition. There’s an important lesson here: if you want to get a helpful answer from an attorney, you’ve got to be careful about the question you ask.

Instead of phrasing the question in the way that he did, Senator Williams should have asked if Act 746 generally permits open or constitutional carry. This question might have produced a more helpful answer. Instead, McDaniel chose to focus solely on the definition of “journey,” saying the “operative inquiry” — that is, the real question — is “what constitutes a journey for purposes of applying the journey exception.” I’m not sure that was really the question Senator Williams intended to ask, and I’m not sure the answer gets us any closer to reality. Nonetheless, that’s the question McDaniel attempted to answer, only mentioning the most important section of Act 746 once. That section of the law reads:

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 underlined portions represent language that is being added to the existing Arkansas Code, and the word “unlawfully” is the single most important word in this statute: this is the part of the law that makes Act 746 constitutional carry, not the journey provisions or any other changes. This section, which I refer to as the “intent section,” is what changes the burden of proof for conviction of a crime from simply “possession of a firearm” to intent to employ the weapon in an unlawful way. This decriminalizes the possession of a firearm: unless a prosecutor can prove that a person carrying a firearm was on their way to use that firearm illegally, that person cannot be found guilty of a crime. Similarly, unless a police officer has reasonable suspicion that a person carrying a firearm is in the process of breaking the law, that person cannot be arrested. Therefore, by default, law-abiding Arkansans can carry a firearm. There is no mention in the statute of how the firearm must be carried, whether concealed or openly. 

How Dustin McDaniel could attempt to answer Senator Williams’ question (no matter how poorly it was worded) without addressing this section of the law is puzzling. He says “the rules for determining legislative intent are well-established. In the absence of ambiguity, legislative intent is determined from the usual and ordinary meaning of the language used.” But then he argues that “reasonable minds” could disagree on how to interpret the phrase “travel beyond the county,” and this results in ambiguity. Really. He said that. Because of this ambiguity, McDaniel says we must have a long discussion about how we really define a journey (outside of what Act 746 actually says) and drones on for seven pages about the new definition of a journey, the historical definition of a journey, etc.

It’s all irrelevant window dressing. The intent section of Act 746 is in no way tied to a journey, whether or not you are inside a vehicle, whether or not you are in your home county, or any other requirements that McDaniel hopes to attach. The intent section simply provides that Arkansans must not use their firearms unlawfully. How Dustin McDaniel could fail to address this is a mystery.

Now, does Act 746 mean Arkansans can carry firearms openly? Well, considering that we do not and have never had a law that prohibits open carry, it would seem so.

I still believe Act 746 represents constitutional carry in Arkansas. Not a single letter of the law has changed since it was signed by the governor. Not a single judge has issued a ruling on the law’s meaning or intent. So far, all we have is a governor who didn’t realize what he was signing and a few law enforcement officers that fundamentally misunderstand what the law says — or are perhaps ignoring what the law says. None of that changes what the law means. To reiterate: carrying a firearm without unlawful intent is legal in Arkansas, effective August 16, 2013.

I think State Representative — and candidate for Attorney General — Nate Steel put it well. While he seemed anxious to walk back his vote for Act 736, he nonetheless told the crowd at his campaign announcement:

You don’t do that as Attorney General. You don’t interpret something as what you want it to say. You interpret it as what the law says.

I wholeheartedly agree.

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