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Open carry law up for re-interpretation, advocates hope for clarity

by Amye Buckley | June 15, 2015 at 1:00 a.m.

It's been two years and no one has stopped Tony Asher from openly carrying a holstered pistol.

"I carry every day, everywhere I go that doesn't have a sign," said Asher, of Lincoln, administrator for Northwest 746 and Patriots of Act 746 groups.

Like its name states, concealed carry permit holders do not carry weapons in plain sight. A person is considered to be using “open carry” if he or she wears a holstered handgun or some other weapon where people can see it.

Concealed carry permits are authorized under Arkansas law and Arkansas recognizes concealed carry licenses issued by other states. To get a license to carry a concealed weapon in Arkansas, a person must be 21 or older, a U.S. citizen and a resident of Arkansas for 90 days. The person can’t have a felony conviction or be judged mentally incompetent.

If in the past three years a person has been committed for substance abuse or found guilty of a charge involving substance abuse, his application will be denied. If the person has documented alcohol abuse or two or more offenses related to alcohol in three years, his application will be denied. Applicants have to take an 8-hour class and submit that documentation. They have to be fingerprinted and background checked.

There are some places where weapons — concealed or not — are forbidden.

Guns are not permitted at public schools for kindergarten through 12th grade students, bus stops, on school buses or at athletic events. If weapons are prohibited by federal law, they are prohibited by state law.

Loaded firearms are prohibited from all publicly owned buildings in Arkansas — including municipally owned or maintained facilities such as a baseball or soccer field.

Possessing a weapon is prohibited at police stations, facilities operated by county sheriffs, Arkansas State Police, Arkansas State Highway and Transportation Department, colleges or universities, jails, prisons, courtrooms, courthouses and meetings of government bodies.

There are exceptions.

The jobs of law enforcement, security guards, court bailiffs and active duty service members require them to carry and that is noted in the law.

Private schools and churches can allow concealed carry permit holders on their grounds. Guns are allowed at marksmanship competitions or educational classes held at public facilities. An unloaded weapon can be shipped from an airport. University and college staff are allowed to concealed carry at the school at which they are employed unless the school forbids it, although students cannot keep them at on-campus housing.

It’s against state law for a person with a felony conviction or anyone who had been committed to a mental institution or judged as mentally ill to own a firearm. No one under age 18 is allowed to own a handgun.

Passed in 2013, Act 746, also known as House Bill 1700, called for technical corrections for possession of a weapon. Previous discussion on the law had focused on the clause that said it was permissible to carry a handgun on a journey, defined as outside the person’s county of residence. Discussion now is focused on a person’s purpose in carrying the weapon.

Part of the 2013 revision reads:

“A person commits the offense of carrying a weapon if he or she possesses a handgun, knife or club on or about his 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.”

A 2013 attorney general opinion said state law did not allow for open carry. A request for a new attorney general opinion is currently before Leslie Rutledge. By policy, her office offered no comment Thursday, but Rutledge has previously stated she believes Act. 746 allows for open carry.

— Staff report

Members of the groups believe Act 746, passed into law in 2013, clarified Arkansas allows anyone to openly carry a firearm as long as that person has no plans to use it unlawfully.

Not everyone supports that view. A 2013 opinion by then-Attorney General Dustin McDaniel says Act 746 does not authorize "open carry."

On Wednesday, Sen. Jon Woods, R-Springdale; Rep. Nate Bell, I-Mena; and Rep. Tim Lemons, R-Cabot; submitted a request for a new attorney general opinion. The three-question request focuses on whether a person is within the law to have a weapon on his person if he has no "purpose to unlawfully employ" it. The request is technical, Woods said, and he hopes to get clarity on the subject.

There are differing opinions across the state and that is a disservice to the people, Woods said.

Law enforcement officials in Northwest Arkansas surveyed for this story said they will not arrest a person for openly carrying a firearm.

Arkansas State Police have consistently said officers follow the 2013 attorney general opinion, which does not allow for open carry. Commanders started meeting with prosecuting attorneys across the state on Thursday to see what the local interpretation of the law is, said Bill Sadler, spokesman.

"The State Police intends to follow the instructions of the local prosecuting attorneys," Sadler said.

An opinion from Attorney General Leslie Rutledge typically takes about 30 days, said Judd Deere, spokesman for her office. By policy, the office does not comment on pending opinions, he said.

In a previous statement, Rutledge said she interpreted Act 746 to mean a person may carry a weapon if he or she did so without the intent to unlawfully employ it against another person, and she hoped to clarify any confusion on the law's intent.


Members of Arkansas Carry are relieved more law enforcement agencies and state officials publicly agree with what members believed all along about Act 746, said Chris Matthews of Maumelle, chairman of the Arkansas Carry board.

Act 746 wasn't about open or concealed carry of a weapon, but about making it legal to have a weapon as long as its purpose isn't illegal, he said.

Many gun owners, even those who advocate for open carry, will conceal their weapon, but they want the right to choose, Matthews said. An open carry option lets concealed carry holders not worry about being out of compliance with a permit if a concealed gun shows an imprint through clothing or slips into view, he said.

The organization's members also believe purchasing a five-year concealed carry permit shouldn't be required for a constitutionally protected right, he said.

Little Rock, North Little Rock, Faulkner and Lonoke counties allow for open carry, Matthews said. Other areas still subscribe to McDaniels' interpretation of the rule.

Law enforcement officers need to be unified on their stance on open carry or it will be chaos, said Kelley Cradduck, Benton County sheriff. If there isn't clarity among those who write the laws on what is or isn't allowed, then it isn't fair to arrest people for it, Cradduck said.

His deputies will not arrest or stop someone just for wearing a handgun openly, Cradduck said.

"People have the right to be left alone until they give you a reason not to," he said.

The Washington County Sheriff's Office does not make arrests for open carry and has held that policy since 2013, said Kelly Cantrell, spokeswoman.

Fayetteville police abide by a 2014 city attorney opinion that says a person can open carry, but if they act in a threatening, careless or reckless manner they could be arrested for carrying a weapon.

The city has had encounters with armed citizens, but no arrests, said Sgt. Craig Stout, spokesman.


Open carry is not a prosecutable offense by itself, said Nathan Smith, Benton County prosecuting attorney. Carrying a weapon for an unlawful purpose is different, he said.

A person who wears a pistol on his or her hip should expect to attract police attention and not be upset if a police officer wants to visit with them, Smith said. Officers need to make sure the person is legally carrying the weapon and not a felon or a person with mental health issues or someone who might be angry and looking for revenge, Smith said.

A person who is carrying a gun needs to be aware of places where weapons are prohibited, Smith said. Some businesses may also request people leave their guns at home. He pointed to common sense and common courtesy as good rules of thumb.

"Everybody knows if you have a gun you have to be responsible for it," Smith said.

Arguments take on a different tone under the law if a person is armed and could result in a felony charge, Smith said. Threatening death or serious physical injury takes on a new meaning if a person has a gun with them at the time, he said.

"There's something to back up that threat," Smith said.

Bentonville Police Chief Jon Simpson and Rogers Police Chief Hayes Minor both said their departments follow Smith's guidance and will not arrest someone for wearing a handgun.

However, if Rogers police are called because someone is worried about a person with a gun, they'll check it out, Minor said.

"We don't know what a bad guy looks like. We don't know intentions," Minor said.

If the person openly carrying a weapon has a concealed carry permit then that will speed up any questions officers have, Minor said.

"We know that not everybody can get a concealed handgun license," he said.

Police would have a difficult time proving a person was carrying the weapon with unlawful intent if carrying a weapon was all he was doing, said Lt. Scott Lewis, spokesman for Springdale police.

However, there is a certain responsibility that goes with a weapon, Lewis said.

"The way you walk around the world changes if you're an armed person," said Lewis, who teaches concealed carry classes.


There are benefits to a concealed carry license, said Jeremy Heape of Bella Vista. There are mixed emotions, even among gun owners, about open carry, he said. Heape carries concealed.

"I feel safer that way," he said.

People who are armed can stop crime, Heape said, but he worries open carry has the potential to exacerbate a situation. He supports gun owners and the right to carry both openly and concealed, he said. The lack of clarity is a problem.

"There is so much gray area," Heape said.

Concealed carry has its benefits, he said. It is easier to purchase a weapon in the state because the card shows a completed background check. The training is useful and the $100 initial fee is spread out across five years. If a person is pulled over, they can show both the concealed carry card and a driver's license.

"They know you're a law-abiding citizen," he said.

There are 179,206 people licensed under the Arkansas' concealed handgun laws, according to Arkansas State Police.

Asher too recommends the concealed carry license, although he opposes it on principle. Constitutional carry, or the ability to carry a weapon without a permit, is recognized in only six states, Asher said. An Arkansas concealed carry license is reciprocal with other states. The safety training and points of law are also important, he said.

When he first began to carry his pistol openly, people gave him strange looks, Asher said. But he's also been approached by an older woman who thanked him being ready to protect and overheard a mother explaining to her child Asher was there to help if anything went wrong.

He's been approached by law enforcement once, Asher said. A person called 911 after spotting him at the Washington County Fair and officers stopped him and asked for identification. Since he was openly carrying, he offered his driver's license instead of his concealed carry card, Asher said. The officers checked his information and told him to have a nice day.

Not everyone should be carrying a weapon, Asher said, but not everyone should be driving either. Police don't check every car, nor should they check every person carrying a weapon unless that person gives a reason, he said.


There are between 8,000 and 10,000 members statewide in the Patriots of Act 746 group, Asher said. Four have been arrested for open carrying since 2013 and three of those have been to court and deemed not guilty.

Matthews, the Arkansas Carry chairman, said if people call about a person wearing a gun, dispatchers can ask if that person is brandishing it or threatening another person. If the wearer is doing nothing illegal, the call should be dismissed, Matthews said.

"They don't write laws telling you what you can do," Asher said.

Lawmakers have discussed the idea of open carry and rural open carry laws, but there was not political support on the Arkansas Senate Judiciary Committee for such a law this year, Woods said.

"I think that you can open carry right now, but there shouldn't be this much confusion," Woods said.

Direction from lawmakers would be good, said Minor, the Rogers police chief.

"I think this will be a learning curve for all of us," he said.

Amye Buckley can be reached at or on Twitter @NWAAmye.

A Section on 06/15/2015

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