Did Arkansas Act 746 of 2013 legalize open carry of a handgun without a concealed-carry license?

Plain-English summary

Three Arkansas legislators (Senator Jon Woods, Representative Nate Bell, and Representative Tim Lemons) asked the AG to settle the public and law-enforcement confusion over Act 746 of 2013, which amended the misdemeanor crime of "carrying a weapon" in Ark. Code Ann. § 5-73-120. The AG's bottom line: Act 746 effectively decriminalized mere possession of a handgun, but with significant limits.

Two textual changes drove the analysis:

Change 1: Mens rea. Before Act 746, § 5-73-120(a) made it a misdemeanor to possess a handgun "with a purpose to employ" it as a weapon against a person. Act 746 added "attempt to unlawfully" so the statute now reads "with a purpose to attempt to unlawfully employ." That distinguishes lawful intent to use a handgun (self-defense, hunting) from unlawful intent.

Change 2: Affirmative defenses became permissible activities. Before Act 746, § 5-73-120(c) listed circumstances as "defenses to prosecution," meaning the defendant had to prove them. Act 746 reclassified them as circumstances under which it is "permissible" to carry a handgun, shifting the burden to the state to prove unlawful intent.

Putting these together, the AG concluded that merely possessing a handgun on the person or in an occupied vehicle does not violate § 5-73-120(a). The state must prove both possession and an intent to attempt to unlawfully employ the handgun as a weapon against a person. The AG also concluded that pre-Act 746 case law presuming intent from the mere fact a handgun was loaded (McGuire v. State; Stephens v. City of Fort Smith; Carr v. State) no longer logically applied after the amendment.

The AG then listed four critical caveats:

1. Police inquiry is still allowed. An officer with reasonable suspicion of unlawful intent can stop and detain. Whether suspicion exists depends on the demeanor of the suspect, gait and manner, third-party information, and proximity to known criminal conduct (Ark. Code Ann. § 16-81-203). Mere possession alone does not create reasonable suspicion, but possession plus another factor often will.

2. Other statutes still ban handguns in specific places regardless of intent. Schools (§ 5-73-119), publicly-owned buildings or facilities and State Capitol grounds (§ 5-73-122), and similar provisions remain in force. A person cannot lawfully carry on those locations even with no unlawful intent.

3. Private property owners can still exclude. The owner of private property can bar weapons. Refusal to leave when asked can result in criminal trespass under § 5-39-203.

4. Concealed-carry licensing still required. Act 746 did not abolish the concealed-carry license requirement. The licensing scheme in § 5-73-301 et seq. is fully in force. Carrying a concealed handgun without a license is still unlawful, and the AG opined that the Arkansas Supreme Court would likely allow the presumption that someone carrying concealed without a license has the unlawful intent required by § 5-73-120(a).

The AG then addressed the "journey exception" in § 5-73-120(c)(4). Act 746 also defined "journey" for the first time, as "travel beyond the county in which a person lives." The AG read the journey exception to apply to travel outside the home county by vehicle, but not to brief and routine outings (like a five-minute drive across a county line to visit family). The exception applies only while the handgun stays in the vehicle. Once the gun leaves the vehicle, the exception no longer covers the carry, although the basic intent rule of subsection (a) still does.

For concealed carry under the journey exception, the AG drew the following line: a person on a journey may keep a concealed handgun in the vehicle even without a license, but the moment the person carries it concealed on the body outside the vehicle, the concealed-carry license requirement reactivates.

The opinion closed with the addendum listing principal laws limiting open carry of handguns: criminal trespass, school and capitol-grounds prohibitions, prohibited persons (under 18, felons, those subject to protection orders or convicted of domestic-violence misdemeanors), and prohibited handguns (silenced, defaced serial numbers).

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Act 746 of 2013 was widely understood at the time as Arkansas's "open-carry" or "constitutional carry" enactment, though the act itself does not use those phrases. It amended two provisions of the firearms code:

• § 5-73-119 (possession by minors and possession on school property): adjusted to align with the new § 5-73-120 framework.
• § 5-73-120 (carrying a weapon): the central change, both as to mens rea (adding "attempt to unlawfully") and as to defenses (reclassifying the list as permissible activities).

The constitutional and statutory context matters. Arkansas had (and still has, as of this opinion's date) a concealed-carry licensing scheme under § 5-73-301 et seq. that the AG read as unaffected by Act 746. The licensing scheme remains the gatekeeper for concealed handguns in public. The Eighth Circuit in Stoner v. Watlington (2013) had already noted that the post-Act 746 statute requires intent for a violation.

The journey exception traces back to 19th-century Arkansas Supreme Court cases (Carr v. State, 1879; Hathcote v. State, 1891) about defending oneself against "perils of the highway." Act 746 codified "journey" for the first time as "travel beyond the county in which a person lives." The AG read this against the historical purpose (long-distance travel, not routine cross-county trips) and concluded the exception does not cover quick errands across a county border.

The presumption-of-intent doctrine in McGuire (1979), Stephens (1957), and Carr (1879) had allowed juries to infer intent to use a handgun as a weapon from the fact the weapon was loaded. The AG concluded that doctrine no longer holds water after Act 746, because mere possession of a loaded handgun does not logically support an inference of an intent to use it unlawfully.

The four-corners view: Act 746 narrowed the crime, but did not repeal it, did not abolish concealed-carry licensing, and did not override location-specific bans. The opinion's value to law enforcement was largely that it laid out reasonable-suspicion factors that the AG said could justify a stop notwithstanding the changes.

Common questions

Did Act 746 make Arkansas a "constitutional carry" state?

Effectively for open carry of handguns by adults who are not otherwise prohibited from possessing firearms, yes, according to the AG's reading. But concealed carry still required a license at the time of this opinion, and a handful of statutes (schools, capitol grounds, public buildings) still banned handguns regardless of intent.

Can a police officer stop me just because I'm openly carrying?

Not based on the open carry alone, in the AG's view. But the officer can inquire and can detain on reasonable suspicion, which can arise from possession plus another factor like the surrounding circumstances or third-party reports.

Can I drive into the next county with a concealed handgun and no license?

Under the AG's reading of the journey exception, yes (so long as the trip is more than a routine quick errand and the handgun stays in the vehicle). The moment you take the gun out of the vehicle and put it on your body concealed, you need the license.

Does Act 746 let me carry into a school or onto the Capitol grounds?

No. Other statutes (§ 5-73-119, § 5-73-122) still ban handguns at those locations regardless of your intent. Act 746 did not touch those provisions.

Can a private business still post "no firearms" signs and enforce them?

Yes. The AG was emphatic that private property owners can exclude armed visitors. Refusing to leave when asked can result in criminal trespass under § 5-39-203.

What about loaded handguns? Doesn't carrying a loaded gun show intent?

Not by itself, in the AG's reading after Act 746. Pre-2013 Arkansas Supreme Court cases (Carr, Stephens, McGuire) had allowed juries to infer intent from the fact a handgun was loaded. The AG concluded those cases no longer logically hold after the mens rea amendment, because lawful intent (self-defense) also involves loaded handguns.

Was this opinion legally binding?

No. AG opinions are persuasive but not binding. Courts and prosecutors are free to disagree. But this opinion shaped Arkansas firearms enforcement policy in practice and was widely circulated to law enforcement.

Citations

• Act 746 of 2013 (amending §§ 5-73-119, -120)
• Ark. Code Ann. § 5-73-120 (carrying a weapon)
• Ark. Code Ann. § 5-73-120(c)(4) (journey exception)
• Ark. Code Ann. § 5-73-120(c)(8) (concealed-carry license exception)
• Ark. Code Ann. § 5-73-122(a)(1) (public buildings, capitol grounds)
• Ark. Code Ann. § 5-73-301 et seq. (concealed-carry licensing)
• Ark. Code Ann. § 5-39-203 (criminal trespass)
• Ark. Code Ann. § 16-81-203 (reasonable suspicion factors)
• Ark. R. Crim. P. 3.1 (stop and detain)
• Stoner v. Watlington, 735 F.3d 799 (8th Cir. 2013) (intent requirement)
• McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979) (pre-Act 746 presumption from loaded handgun)
• Stephens v. City of Fort Smith, 227 Ark. 609, 300 S.W.2d 14 (1957)
• Carr v. State, 34 Ark. 448 (1879)
• Hathcote v. State, 55 Ark. 181, 17 S.W. 721 (1891) (journey exception meaning)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2015-064
August 28, 2015
The Honorable Jon Woods
State Senator
P. O. Box 8082
Springdale, AR 72766

The Honorable Tim Lemons
State Representative
38 Brentwood Cove
Cabot, AR 72023

The Honorable Nate Bell
State Representative
P. O. Box 2103
Mena, AR 71953

Gentlemen:

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

You have asked for my opinion about Act 746 of 2013, which amended Ark. Code Ann. § 5-73-120(a). This section of the Code establishes the misdemeanor crime of "carrying a weapon." Your questions address the effect of Act 746 on the ability of Arkansans to legally possess handguns on their persons and in their vehicles.

INTRODUCTION AND SUMMARY

Act 746 has created some confusion among both the people of Arkansas and law enforcement in Arkansas on these questions. Ordinary Arkansans want to know where and when they may legally possess a handgun. Arkansas law enforcement wants to understand what the law does and does not prohibit so that law enforcement can continue to keep us safe while respecting the rights of all Arkansans.

Ultimately, the confusion created would be best alleviated by additional legislative action to clarify what Act 746 was trying to accomplish. Nonetheless, my opinion below (and the attached addendum) is intended to provide as much clarity as possible to both law enforcement and ordinary citizens by explaining how I believe Act 746 currently bears on the ability of Arkansans to legally possess handguns on their persons and in their vehicles.

While I do not encourage "open carry," it is my opinion that if a person does not have the intent to "attempt to unlawfully employ a handgun ... as a weapon against [another]," he or she may "possess a handgun ... on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use" without violating § 5-73-120(a) as amended by Act 746. That means in general merely possessing a handgun on your person or in your vehicle does not violate § 5-73-120(a) and may be done if it does not violate other laws or regulations. However, there are four critical caveats to my opinion:

First, any person who carries a handgun should be aware that a law enforcement officer might lawfully inquire into that person's purpose. Determining culpability or potential culpability under § 5-73-120(a) is initially a matter for law enforcement following guidelines that routinely apply when investigating a misdemeanor involving the danger of forcible injury to persons. A law enforcement officer may stop and detain any person reasonably suspected of violating § 5-73-120(a) if necessary to identify the person or determine the lawfulness of his or her conduct. Whether an officer has reasonable suspicion will depend upon a number of circumstance-specific factors. Some of these factors are recounted in Ark. Code Ann. § 16-81-203 (Repl. 2005), including: (1) the demeanor of the suspect; (2) the gait and manner of the suspect; (3) any information received from third persons; and (4) the suspect's proximity to known criminal conduct.

Second, other statutes prohibit possession of a handgun in certain circumstances regardless of whether a person has the intent to use a handgun unlawfully. Those statutes still have full force and effect. For example, Ark. Code Ann. § 5-73-122(a)(1) prohibits (with exceptions not relevant here) possessing a deadly weapon "in any publicly owned building or facility or on the State Capitol grounds." So a person could not lawfully bring a handgun onto the State Capitol grounds even though doing so wouldn't necessarily cause a violation of § 5-73-120(a). I provide a non-exhaustive list of those statutes in an Addendum to this opinion.

Third, a private property owner or occupant is still entitled to keep handguns (and other firearms) and persons with handguns (and other firearms) off his, her, or its property. If a person enters or stays on private property against the owner's or occupant's stated desire that he or she not enter or that he or she leaves, that person may be guilty of criminal trespass. See Ark. Code Ann. § 5-39-203 (Repl. 2013).

Fourth, the laws requiring a license to carry a concealed handgun still have full force and effect. Nothing in Act 746, § 5-73-120(a), or this opinion is intended to suggest that a person may carry a concealed handgun in public without a properly issued concealed-carry license. A person may not lawfully carry a concealed handgun in public without a properly issued concealed-carry license. I believe this necessarily follows from the concealed-carry licensing scheme that predates Act 746 and that, in my opinion, was unaffected by Act 746.

QUESTIONS AND DETAILED RESPONSES

You have requested my opinion on three questions concerning Act 746 of 2013. Act 746 of 2013 amended two sections of the Arkansas Code, namely, §§ 5-73-119 and -120, that define offenses involving the possession of a weapon. Given the general focus of your questions, I will limit my analysis to § 5-73-120, which establishes the misdemeanor crime of "carrying a weapon."

You asked whether Act 746 of 2013 permits a person not on a journey to openly carry or carry concealed a handgun or other weapon in public without violating the criminal offense of carrying a weapon, § 5-73-120, so long as he or she has no "purpose to attempt to unlawfully employ the ... weapon against a person?"

Before its amendment by Act 746, § 5-73-120 made it unlawful to possess a handgun, knife, or club "with a purpose to employ the handgun, knife, or club as a weapon against a person." The statute provided a number of affirmative defenses to prosecution, including for example carrying a weapon on a "journey" and carrying a concealed handgun with a license in a motor vehicle. Act 746 amended § 5-73-120 in two major respects relevant to this question.

First, Act 746 amended § 5-73-120(a) to provide that one commits the misdemeanor crime 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.

By adding the words "attempt to unlawfully," Act 746 partially altered the mens rea (i.e., mental state) element associated with the crime of "carrying a weapon." Under the prior version of the statute, to commit the offense of "carrying a weapon," a person had to possess a handgun, knife, or club with the intent to employ it as a weapon against a person. After Act 746's passage, a person now commits this crime only if he or she possesses a handgun, knife, or club with the intent to attempt to unlawfully employ it against a person.

Second, Act 746 reclassified what was the list of affirmative defenses to the crime of carrying a weapon to circumstances under which it is permissible to carry a handgun. Prior to its amendment by Act 746, the prefatory language to the list stated: "It is a defense to prosecution under this section that at the time of the act of carrying a weapon ...." The prefatory language now states: "It is permissible to carry a handgun under this section if at the time of the act of possessing a weapon ...."

In my opinion, Act 746's amendments to § 5-73-120 mean that (1) the statute only criminalizes a person's "possess[ing] a handgun on or about his or her person, in a vehicle occupied by the person, or otherwise readily available for use" if he or she simultaneously has the intent "to attempt to unlawfully employ the handgun ... as a weapon" against a person, and (2) this unlawful intent may not be presumed simply because that person possesses a loaded handgun.

The first proposition is clear from the language of the amended statute and I need go no further than this to determine that the statute requires that the possession be "with a purpose to attempt to unlawfully employ" the handgun "as a weapon against a person." In fact, on at least three occasions, the Arkansas Supreme Court has made clear that a person must have the intent required by the statute "in order to violate ... § 5-73-120(a)" (Stoner v. Watlington, 735 F.3d 799, 804-05 (8th Cir. 2013) (citing three Arkansas Supreme Court cases)).

The second proposition requires brief additional explanation. There is 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. In these cases, the Court was simply saying that the jury could (but did not have to) presume intent to employ the handgun as a weapon from the fact that the weapon was loaded. Whatever the propriety and effect of this permissive (but not mandatory) jury presumption might have been before Act 746, it does not appear that the presumption can be logically maintained in light of Act 746's amendments. Even if a loaded handgun could give rise to a presumption that the handgun was possessed with the purpose of employing it as a weapon against another person, it is unclear how mere possession of a loaded handgun (without anything else) could give rise to a presumption that the handgun was possessed "with a purpose to attempt to unlawfully employ" the handgun "as a weapon against a person." The logical leap that a person who has a loaded handgun intends to use it unlawfully as a weapon is far more strained than the logical leap that a person who has a loaded handgun intends to use it as a weapon (either lawfully or unlawfully).

The inapplicability of the loaded handgun presumption is further evidenced and supported by the second change that Act 746 made to § 5-73-120: changing the list of affirmative defenses to a non-exhaustive list of circumstances under which it is permissible to carry a handgun. Reclassifying this list from affirmative defenses to permissible circumstances confirms that there are a number of permissible reasons to carry a loaded weapon and that the burden is not on the loaded handgun possessor to prove that he had a fair reason for possessing the handgun. Rather, the burden is intended to remain on the State to prove possession and unlawful intent. In light of this amendment, and certainly when coupled with alteration to the intent element noted above, a presumption of unlawful intent from the mere fact that a weapon was loaded (without anything more) is no longer tenable.

You asked whether it is my opinion that Act 746 of 2013 permits a person to carry a handgun or other weapon, in plain view or concealed, without a concealed handgun license if he or she leaves his or her county so long as he or she is not otherwise prohibited by state or federal law?

Your question implicates what is commonly known as "the journey exception." Under § 5-73-120(c)(4), as amended by Act 746, it is "permissible" to "[carry] a weapon when upon a journey." In my opinion, this means that the offense of "carrying a weapon" simply does not apply to a person who is "upon a journey." By changing the journey exception from an affirmative defense to a "permissible" activity, Act 746 removed this activity completely from the circumstances in which a person might be found guilty of the offense of "carrying a weapon."

Some questions may remain, however, regarding the scope of the journey exception. Prior to Act 746, "journey" had not been statutorily defined, although the Arkansas Supreme Court had provided several guideposts concerning what did and did not qualify as a journey. Act 746 defined the term "journey" as "travel beyond the county in which a person lives." What qualifies as a journey under this new statutory definition remains, at least in certain situations, unclear.

In my opinion, the phrase "travel beyond the county in which a person lives" is ambiguous because the word "travel" is ambiguous. Because the meaning of "travel" is somewhat ambiguous in the context of this statute, I turn to the journey exception's historic purpose "to permit [the carrying of weapons] when necessary to defend against perils of the highway ...." The Arkansas Supreme Court has explained that "as generally understood," the journey exception "signifies travel to a distance from home, and it is not used in reference to travel in one's neighborhood or among one's immediate acquaintances."

Bearing in mind the purpose of the journey exception and the case precedent serving as a backdrop for Act 746, I interpret the journey exception to generally apply when a person is in the process of traveling by vehicle outside his or her county (even if he is within his home county at the time en route to locations outside his county), but not to brief and routine outings (like a five minute drive to see one's family or to work or to a restaurant in the adjacent county). In my opinion, a person carrying a handgun, knife, or club in a vehicle when traveling outside his or her county is not subject to § 5-73-120(a). This is so regardless of whether the weapon is concealed or in plain view in the vehicle and regardless of whether the person has a license to carry a concealed handgun. In my opinion, the journey exception stands separate and apart from the concealed-carry exception so long as the handgun is in the vehicle during the journey.

It is my opinion that, except for truly extraordinary and unique circumstances, the journey exception only applies while the handgun remains in the vehicle. Once the weapon leaves the vehicle, however, the journey exception is generally unavailable for the time the handgun is not in the vehicle, and the person risks violating § 5-73-120(a).

To summarize my opinion related to the "journey exception" question:

• A person is permitted to carry a handgun, knife, or club in a vehicle when traveling outside his or her county, regardless of whether the weapon is concealed or in plain view in the vehicle and regardless of whether the person has a license to carry a concealed handgun;

• If the person takes the weapon out of the vehicle, however, the journey exception no longer applies and the person will risk committing the offense of "carrying a weapon";

• So long as he or she has no intent to unlawfully employ the handgun, knife, or club against another person, the person may lawfully carry the weapon outside the vehicle. To lawfully carry a concealed handgun, however, it will be necessary to obtain a concealed-carry license.

Sincerely,
LESLIE RUTLEDGE
Attorney General

LR:cyh
Enclosure