AG Opinion Favoring Gun Control Is Flawed
By David Ferguson
Despite significant changes to the handgun laws by Act 746 of 2013 , Attorney General Leslie Rutledge says you cannot carry a concealed handgun without a license.
In 2015, the Attorney General admitted open carry of a handgun is permissible, and in 2018 admitted there is no express prohibition in the law to impose a penalty for carrying a concealed handgun without a license. Yet in Opinion 2018-002 the Attorney General also argues there are implied prohibitions and that a presumption in Arkansas case law might be used to say that if you are carrying concealed without a license you are presumed to have an unlawful intent to use the handgun against another person.
Attorney General Rutledge works hard and generally does a very good job. But, something went very wrong with Opinion 2018-002 It is not just that the opinion does not withstand scrutiny. It is that the two primary arguments made in the opinion are supported by a false statement of law and a false statement of case law. That makes this article hard to write. I keep wondering, did some overzealous and inexperienced law clerk mislead the Attorney General?
Here are four things you need to know about Opinion 2018-002.
- The opinion uses a false statement of law as the support for an argument declaring an implied prohibition for carrying concealed handgun without a license.
- The opinion falsely states a presumption in case law and thereby makes it appear that carrying a concealed handgun might be presumed illegal by the courts.
- The opinion argues that since the crime of carrying a weapon includes a list of permissible uses but doesn’t mention carrying without a license then unlicensed carry must be prohibited. As I will explain later, this way of looking at the list produces illogical results and cannot stand.
- Principles of criminal law do NOT support the notion of creating crimes by implication.
This subject necessitates a long explanation and not everyone will want to plow through the full article. To make it a little easier for you to jump to the parts of most interest to you here is an outline.
A. Misstatements of Law
1. False statement concerning statute.
2. False statement concerning presumption under case law.
B. Argument Brings Irrational Results
C. The Word “License” Does Not Imply a Penalty For Non-Compliance
D. Principles of Criminal Law Stand in Opposition to Arguments in the Opinion
E. The Claim of Confusion and the End Game
F. Constitutional Carry
Some may be disappointed because I do not include an argument for unlicensed concealed carry based on the Second Amendment. Others will accept or reject what was said based solely on whether they like or dislike guns or whether they think concealed carry is more scary or less scary than open carry.
I focus only on Arkansas statutes and case law and I’ll let it stand there.
A. Misstatements of Law
1. False statement concerning statute. The opinion argues there is an implied prohibition against carrying a concealed handgun based on the existence of a concealed-carry license. One statute is offered as supporting this argument. The opinion says Arkansas Code § 5-73-310(7) acknowledges that a concealed-carry license represents “the ‘legal means to carry a concealed handgun…..’” That is not what the statute says. The statement was created with selective editing that avoids including an important word. The statute refers to “a legal means” not “the legal means.” The statute merely says an applicant for a license must include,
“A statement that the applicant desires a legal means to carry a concealed handgun to defend himself or herself”. [i](underlining added)
The statute in no way claims the license is the exclusive means, and nothing else is offered in support of an implied prohibition.
2. False statement concerning presumption under case law. The opinion cites three Arkansas cases[ii] for the proposition that the “courts might apply a presumption that a person carrying a concealed handgun without a concealed-carry license has the intent ‘to attempt to unlawfully employ the … handgun as a weapon against a person.’”
This is NOT what the presumption in the case law stands for. This false statement is surprising considering the Attorney General presented a reasonable statement of the presumption in Opinion 2015-064. There the Attorney General said:
“There are a line of Arkansas Supreme Court cases that arguably suggest (mostly in dicta) the existence of a presumption that the possession of a handgun (and certainly a loaded handgun) signifies that the handgun was intended to be employed as a weapon.”
McGuire v State, 265 Ark. 621 (1979) is the most recent only case cited by the Attorney General and it was under the law as it existed before the passage of Act 746 of 2013. Here is how McGuire states the presumption: “There is a presumption that a loaded pistol is placed in a car as a weapon.”
Why is the statement in Opinion 2018-002 so different? The made-up presumption adds the missing piece needed for a conviction under current law. It sounds authoritative…. until you realize it is not true.
The presumption in case law allowed the state to say a person carrying a loaded handgun was carrying it as a weapon and that was enough for a conviction, unless you could prove a defense. After Act 746 of 2013 it is no longer enough for a conviction. Now the state must prove the person was carrying it for an unlawful purpose.
For example, before 2013 a person who walked down the sidewalk carrying a loaded handgun for self-defense was presumed guilty of carrying a weapon. Now in addition to asking whether the handgun is being carried as a weapon, the state must prove beyond a reasonable doubt that the person intended to use the weapon unlawfully. The person carrying the handgun for self-defense is no longer guilty of an offense.
It should be noted the presumption in case law made no distinction between open or concealed carry. The Attorney General has already admitted open carry is legal, which means the Attorney General recognized the presumption under prior law is not sufficient.
The presumption presented in the opinion is not the presumption in case law, and the presumption found in case law does not support the argument against concealed-carry without a license.
B. Argument Brings Irrational Results
The opinion notes that within the offense of carrying a weapon:
“The statute explicitly states that it is ‘permissible to carry’ if the person “is in possession of a concealed handgun and has a valid license to carry a concealed handgun … and is not in a prohibited place…. But the statute does not say the same about carrying a concealed handgun without a concealed-carry license. A court might imply from the statutory language that carrying a concealed handgun without a concealed-carry license is not “permissible” and thus shows the intent necessary to violate section 5-73-120(a).”
In a nutshell this argument says – because the offense of carrying a weapon includes a list of authorized uses, the list serves to limit the ability of a person to carry a handgun. It claims if it is not included in the list then it is restricted by implication.
To see why this argument is unworkable, let’s apply the opinion’s logic to another item in the list. Item (c)(1) says a person can carry a handgun “in his or her own dwelling or place of business or on property in which he or she has a possessory or proprietary interest.” But, notice this item does not say you can carry a handgun on someone else’s land. Let’s assume your friend invites you to ride around with him on his land and says bring your pistol for some target practice. Applying the logic proposed in the opinion, this invitation would put you in violation of item (c)(1) because you have no possessory interest in the land. Likewise, using this logic you could not carry a concealed handgun in your own house without a license because applying this logic would say although you may carry a handgun in your house, item (c)(8) requires you to have a license if you are going to carry concealed in your own home. Both examples show the argument is not a reasonable interpretation.
Instead of the government trying to imply prohibitions based on something not being found in the list, the statute must be read as a list of specific permissible uses, not a limitation or restriction.
Having written legislation for Arkansas legislators for over three decades, I recognize the problem the drafter faced in trying to revise the statute. Not amending the list was not an option because it was a list of defenses which is inconsistent with the purpose of the amendment – to impose the burden on the state to prove beyond a reasonable doubt that a defendant had an unlawful intent. The drafter could have deleted the list as unnecessary, but some people would have wondered why, and some would have wondered if the drafter was trying to call into question uses once listed as defenses. The drafter chose instead to keep the list but to convert it into a list of positive statements.
It is not necessary for you to accept my understanding of why the drafter modified the list to be a list of permissible uses (not restrictions). It is sufficient to recognize the restrictive logic in the opinion produces irrational results and to recognize that the argument conflicts with principles of criminal law, which will be discussed later in this article.
C. The Word “License” Does Not Imply a Penalty For Non-Compliance
The Attorney General appears to assume the word “license” automatically means there is an express or implied penalty for no having a license. Indeed, one of the common definitions of license says, “a permission granted by competent authority to engage in a business or occupation or in an activity otherwise unlawful.” But, the same dictionary first provides another less restrictive definition – “permission to act.”[iii]
Who decides what “license” means? It is the legislature who decides through the provisions they put into a licensure law.
Many licensure laws say failure to obtain a license is unlawful and set a criminal penalty for failure to comply. Other licensure laws are enforced not by criminal penalty but by a civil fine.[iv] A licensure law can be written with an injunction being the only enforcement. If a licensing law can be written with only civil enforcement, what prevents the legislature from creating a licensure law that is permissive and does not include any enforcement method? This is exactly what the legislature did in the concealed-carry law, it included no penalty other than for filing false information on an application.
If you still insist there must have been an enforcement mechanism, then look no further than the offence of carrying a weapon as it existed the time the licensure law was passed. Unless you could prove a defense such as being on a journey it was illegal to carry a loaded handgun for self-defense and it didn’t matter whether it was open or concealed carry. Having a way to avoiding the risk of being prosecuted was all the enforcement needed.
But Act 746 of 2013 changed the offense of carrying a weapon to make it lawful to carry a handgun, unless the person intends to use it in an unlawful purpose.
Some might claim this understanding of Act 746 conflicts with having a concealed-carry license because it would make the license obsolete. Even with an incentive gone, the regular concealed-carry licensure is not obsolete. A person may choose to have a license and you would want a license if you want to be able to concealed-carry in states recognizing the Arkansas license as valid in their states.
I also note, not only was the concealed carry law written without a penalty and without a prohibition, but it was also called a “license” despite failing to include a direct statement granting a permission to carry. This appears to have been a concern to the legislature, because after passing the concealed-carry law, the legislature in the same session passed Act 832 of 1995 to add the concealed-carry license to the list of defenses to carrying a weapon but the new defense ONLY applied if the licensee was in a motor vehicle.[v] This limited defense remained until Act 746 changed the law and recognized more gun rights.
Should the legislature have called it something other than license? Substituting the term “permit,” “permission slip,” or “even “hall pass” would not help because someone could interpret them in the same restrictive way.
D. Principles of Criminal Law Stand in Opposition to Arguments in the Opinion
If additional prohibitions could be created by implication where no prohibition is stated in the law, you would never know whether you were complying with or breaking criminal law. This is the situation proposed by the opinion – criminal laws by implication.
Fortunately, we are a nation of enumerated laws and without such would violate fundamental fairness as protected under the Due Process clause of the U.S. Constitution. Then there is the principle of “nulla poena sine lege” which is fancy words for “no penalty without a law.” Also, the “rule of lenity” says ambiguities in a criminal statute relating to prohibition and penalties must be resolved in favor of the defendant if not contrary to legislative intent.
The opinion’s logic would result in you being in constant danger of finding yourself violating some prohibition not stated but conjured up by someone by implication. But, principles of law protect us by demanding prohibitions be clearly stated.
E. The Claim of Confusion and the End Game
The Attorney General suggests there is so much confusion over concealed-carry that the legislature should revisit the law to clarify it. Some gun rights advocates have already referred to this assertion of confusion as “manufactured confusion” and I must agree. They are rightfully concerned that the end game is to get the legislature to reconsider the handgun laws, so politicians will have an opportunity to weaken the law, similar to how the legislature was talked into amending a simple campus carry bill for college staff and thereby transforming it into the regulatory nightmare called “enhanced carry.”
Confusion exists, not because of the law, but because of the Attorney General’s opinions and statements by Governor Hutchinson claiming concealed carry requires a license.[vi] If they persist, a test case to resolve the matter will be necessary.
Gun control advocates know that they win by either sending the issue back to the legislature, with the chance to weaken the law, or by forcing a test case that could take years, not just for a case to come to trial but to ultimately be a case to make it to the Arkansas Supreme Court where a statewide precedent would be set.
F. Constitutional Carry
“Constitutional carry” is the term used to describe the ability of citizens to bear arms openly or concealed without a license. It is sometimes referred to as “Vermont Carry.” In 1903, the Vermont Supreme Court struck down a city ordinance prohibiting a person from carrying a handgun. The court recognized under its state constitution the people had the right to carry firearms without a permit.[vii] Carrying without a license has worked in Vermont for a very long time. I see nothing the AG Opinion 2018-002 that would justify saying Arkansas did not join the list of constitutional carry states in 2013.
ADDITIONAL READING
Below I have added a timeline primarily to help the reader understand the legislative history but also to show how the AG opinions fit in. Also below is a quote from a 2015 opinion letter by Prosecuting Attorney Daniel Shue.
Timeline
- Under the Arkansas Criminal Code, which became effective January 1, 1976, a person was guilty of the offense of Carrying a Weapon if the person carried a handgun “with a purpose to employ the handgun … as a weapon against a person.” Case law supported a presumption that if you carried a loaded handgun then you were carrying it as “a weapon against a person”[viii] and was an offense. This effectively prevented a person from carrying a handgun for self-defense, unless the person could prove his conduct fell under one of the defenses listed in the statute, such as being on a journey. A person asserting one of the several defenses had the burden of proving the defense.
- The legislature passed the concealed-carry license law by identical Acts 411 and 419 of 1995.
- During the same 1995 legislative session, the legislature decided the offense of carrying a weapon should be amended to make having a concealed-carry license a defense to carrying a weapon. Act 832 of 1995 added the license to the list of defenses but ONLY if the licensee was in a motor vehicle.[ix]
- Until the passage of Act 746 of 2013, having a license remained a defense only while in a motor vehicle. First, Act 746 broadened the statement about the license to include any place that was not a prohibited place. Second, the act transformed all defenses into a list of authorized uses. Third and most importantly, the offense of carrying a weapon was rewritten to flip the burden of proof from the gun owner to the state. The offense was rewritten to only prohibit a person from carrying a handgun (openly or concealed) “with a purpose to attempt to unlawfully employ the handgun … as a weapon against a person.”[x]
- In 2015, Attorney General Rutledge issued Opinion 2015-064 which acknowledged that Act 746 allows a person to openly carry a handgun, but then argued (A) the existence of the concealed-carry license law prohibits a person from carrying a concealed-handgun without a license; and (B) A presumption might be applied to say that if a person carried without a license, then the person was carrying the handgun with the intent to employ it as a weapon against another person.
- Senator Linda Collins-Smith saw that the concealed-carry license law contained no applicable penalty or prohibition and therefore in January 2018 requested the Attorney General to issue an opinion to confirm there is no prohibition in the concealed-carry law.
- In Opinion 2018-002 the Attorney General acknowledged the concealed-carry license law does not state any penalty. After acknowledging that the licensure law does not provide for any penalty, the Attorney General repeated the assertion that there is an implied prohibition and for a presumption.
Quote from Prosecuting Attorney Daniel Shue’s opinion letter.
Prosecuting Attorney Daniel Shue of the Twelfth Judicial District also examined the issue of whether the presumption in case law still serves to limit the ability to carry a handgun, and he too found that it does not. On June 23, 2015, he issued a letter to law enforcement agencies in his district, and noted there had been a demonstration/walk at Chaffee Crossing in Fort Smith. This would have been one of the open carry walks by Second Amendment supporters.[xi] Shue said:
At the time, the City Prosecuting Attorney, John Settle, and I conferred with regard to the changes in the law and agreed that there had been a fundamental change in the law. The demonstration/walk was peaceable and went off without incident – no person was arrested for violation of the amended statute.
Ironically, what a lot of people have missed is that this is a return to the state of the law in 1975, after the passage of Act 696 of 1973. In 1979, the Supreme Court of Arkansas in McGuire v. State, 265 Ark. 621, created the legal presumption that the mere possession of the weapon satisfied the mental state for this criminal offense. That legal presumption no longer applies. A.C.A. § 5-73-120, in pertinent part reads as follows:
(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.
During the 2015 Legislative Session, the Arkansas Legislature took no action with regard to the 2013 amendment. Therefore, there have been no substantial changes to Act 746 of 2013. It is fundamental that criminal offenses have mental states set forth by the legislature. For this offense, Act 746 of 2013 changed the mental state such that law enforcement must prove beyond a reasonable doubt that the person had a “purpose to attempt to unlawfully employ” the handgun, knife, or club. Mere possession of the handgun, knife, or club is no longer enough. Where there is no evidence of a “purpose to attempt to unlawfully employ” the weapon, then there has been no crime committed, and no criminal prosecution can be undertaken.”
David Ferguson is a former Director of Arkansas’ Bureau of Legislative Research, having a thirty-two-year career as an attorney for the Arkansas legislature. After retirement from state service his primary focus has been beef cattle farming. He is also a former officer of Conduit for Action.
[i] Arkansas Code § 5-73-120(a)
[ii] McGuire v. State, 265 Ark. 621, 626, 580 S.W.2d 198 (1979); Stephens v. City of Fort Smith, 227 Ark. 609, 611, 300 S.W.2d 14 (1957); and Carr v. State, 34 Ark. 448, 450, 36 Am.Rep. 15 (1879)
[iii] Merriam Webster Dictionary https://www.merriam-webster.com/dictionary/license
[iv] Example – Residential contractor licensure law, Arkansas Code § 17-25-501 et seq, See § 17-25-515.
[v] “(8) The person is in a motor vehicle and the person has a license to carry a concealed weapon pursuant to Act 411 or 419 of 1995”
[vi] Dec 15, 2017 letter from Governor Hutchinson to director of State Police. “A concealed carry license or enhanced carry license continues to be required in order to carry a concealed handgun.”
[vii] http://www.guncite.com/court/state/55a610.html
[viii] See McGuire v State, 265 Ark. 621 (1979)
[ix] “(8) The person is in a motor vehicle and the person has a license to carry a concealed weapon pursuant to Act 411 or 419 of 1995”
[x] Arkansas Code § 5-73-120(a)
[xi] An open carry walk was Fort Smith at least as early as August 24, 2013. https://5newsonline.com/2013/08/15/gun-rights-advocates-plan-open-carry-march/
