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Open Carry is Legal: Governor Hutchinson

Updated: Apr 13

Governor Asa Hutchinson just said something that some people find controversial – he acknowledged that a four-year-old law means what it says. Shocking! The law at hand is Act 746. In 2013, TAP explained how legislators enacted this law that allowed the open carrying of firearms. Unfortunately, some politicians (including the former governor) said that the law did not mean what it said. Thankfully, other elected officials actually read the statute and agreed that it indeed did allow open carry for Arkansans.

Now Governor Hutchinson is adding his voice to the chorus of those who agree that, yes, open carry is legal in Arkansas. Here’s how the Democrat-Gazette describes it:

The open carry of a handgun is protected and allowed, so long as there is no intent to unlawfully employ the handgun,” Hutchinson said in his letter. In a footnote, he defined “open carry” as carrying a handgun in plain view without any type of license. Hutchinson thought it was “prudent” to issue guidance on the matter this month, a spokesman said Thursday, after the governor’s expectations for a test case on whether open carry is allowed in the state that would resolve the issue in court never came to fruition.

Not all state officials agree with the governor, however:

In Pulaski County, the state’s most populous, Prosecuting Attorney Larry Jegley said Thursday that he saw a copy of the governor’s letter. Jegley said the letter would not affect his decision to prosecute someone charged with a crime related to open carry if that arrest were made by trained police within his jurisdiction. “My policy is and remains that so-called open carry … is far from clear from a legal perspective,” Jegley said. He said he could not name a case in his jurisdiction in which someone was charged simply for open carry.

It is unfortunate that Jegley persists in his erroneous position. Police should not harass an Arkansan who is openly carrying a firearm who is doing so without any intent to unlawfully use it.

More precisely, Jegley seems to be inching towards the position that Arkansans could bear criminal liability even in the absence of a statute or other law that spells out what conduct is forbidden. This posture violates a basic principle of criminal law — the rule of lenity — which (to simplify) says that if a law is unclear, it can’t be used against the defendant. Perhaps someday Arkansas will see a court case that clarifies Act 746’s meaning. It is good to see the governor doing what he can to ensure that when this court case occurs, the right outcome will prevail.

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