Does the Arkansas Constitution's right-to-bear-arms clause give Arkansans broader gun rights than the Second Amendment?

Plain-English summary

State Representative Kim Hammer asked the Attorney General to compare Arkansas's constitutional right to bear arms (Ark. Const. art. 2, § 5) with the federal Second Amendment, and to predict how a long list of gun-control measures (handgun bans, assault-weapon restrictions, silencer rules, bump stocks, magazine limits, the concealed-carry licensing scheme, "campus carry," open carry of long guns, and the criminal firearm-possession statutes at Ark. Code Ann. § 5-73-110 et seq.) would fare if challenged under the Arkansas provision.

Attorney General Leslie Rutledge declined to answer. She wrote that Arkansas appellate courts had "addressed this constitutional provision only a handful of times, with most cases dating from the nineteenth century," so any prediction about how the modern Arkansas Supreme Court would resolve the questions would be speculation. She noted in a footnote that statutes are presumed constitutional under Reinert v. State, 348 Ark. 1, 71 S.W.3d 52 (2002), and that a challenger would carry the burden of proof.

Currency note

This opinion was issued in 2019. 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.

Arkansas firearm law has continued to evolve since 2019. In particular, the legislature has revisited concealed-carry, "constitutional carry," and campus-carry rules multiple times. The U.S. Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), substantially changed Second Amendment analysis nationwide. None of that is reflected in this 2019 opinion. Anyone researching the current scope of Article 2, section 5 should look for AG opinions issued after 2022 and for recent Arkansas Supreme Court guidance.

Historical context

What the legislator was trying to do

Senator Hammer (later state senator) was preparing for what he called a "contemporary judicial examination" of Article 2, section 5. The nine-question request looked less like a single legal puzzle and more like a brief on every then-pending firearms policy debate in Arkansas. The AG's response, in effect, told him that the office could not be the proxy for a court that had not yet weighed in.

What the AG actually said

Two sentences carry the weight of the opinion:

1. "The state's appellate courts have only addressed this constitutional provision a few times, with most cases dating from the 19th century."
2. "The absence of more recent case law regarding Article 2, section 5 makes it impossible to predict how Arkansas's appellate courts would approach, much less resolve, the constitutional issues you have raised."

Beyond that, the AG flagged in a footnote that any constitutional challenge to a firearms statute would face the standard Arkansas presumption of constitutionality, and the challenger would carry the burden of overcoming it.

Why this matters for legal historians and researchers

A non-opinion is still useful information. It documents that, as of April 2019, the Arkansas AG considered the modern scope of Article 2, section 5 a legal vacuum. Any later litigant arguing that Arkansas precedent on its state right-to-bear-arms clause is "settled" must reckon with the AG's contemporaneous view that it was not.

Why this matters for legislators (at the time)

Without judicial guideposts, the AG could not tell the legislature whether a proposed statute, on either side of the policy debate, would survive a state-constitutional challenge. The practical takeaway in 2019 was that legislative drafting in this space was operating without state-constitutional case-law backstop.

Common questions

Q: Did the AG say Arkansas's right to bear arms is broader than the Second Amendment?
A: No. The AG took no position on whether Article 2, section 5 grants broader, narrower, or coextensive rights. She declined to opine on any of the nine sub-questions, including the threshold comparison.

Q: Did this opinion say anything about specific statutes like Ark. Code Ann. § 5-73-110?
A: Only in passing. The AG noted that statutes are presumed constitutional and the challenger bears the burden, but she declined to evaluate any specific Arkansas firearm statute against Article 2, section 5.

Q: What is Article 2, section 5?
A: It states in full: "The citizens of the State shall have the right to keep and bear arms, for their common defense." Ark. Const. art. 2, § 5. The "for their common defense" language has historically been read by some commentators as narrower than the Second Amendment's individual-rights framing, but the AG declined to confirm or reject that reading.

Q: Why did the AG say the case law is from the 19th century?
A: Arkansas's appellate courts addressed Article 2, section 5 in a small set of older cases, most predating any modern firearms-regulation regime. The opinion treats that gap as fatal to any contemporary prediction.

Q: Is this still the AG's position today?
A: That depends on later AG opinions and on intervening court decisions. The U.S. Supreme Court's 2022 Bruen decision significantly changed the Second Amendment landscape, and the Arkansas legislature has revised concealed-carry rules multiple times since 2019. Check for newer guidance.

Background and statutory framework

Article 2, section 5 of the Arkansas Constitution states: "The citizens of the State shall have the right to keep and bear arms, for their common defense." The "common defense" qualifier distinguishes the Arkansas text from the federal Second Amendment, which speaks of "the right of the people to keep and bear Arms." Whether that textual difference produces a different scope of protection is the core question the senator asked, and the AG declined to answer.

Arkansas's modern firearms regulatory regime is codified in Ark. Code Ann. § 5-73-101 et seq., covering criminal possession offenses, concealed-carry licensing, and prohibited locations. The senator's questions surveyed this regime and asked the AG to predict its constitutional fate.

The AG's "decline to opine" disposition has a procedural footing: the office traditionally avoids speculating on novel constitutional questions when the courts have not spoken. In an area where the Arkansas Supreme Court's most recent substantive analysis predates the Civil War, the AG concluded the speculation would be too thick to be useful.

Citations and references

Constitutional and statutory provisions:

• Ark. Const. art. 2, § 5 (right to keep and bear arms)
• U.S. Const. amend. II (Second Amendment)
• Ark. Code Ann. § 5-73-110 et seq. (Arkansas firearm offenses)

Cases:

• Reinert v. State, 348 Ark. 1, 71 S.W.3d 52 (2002) (statutes presumed constitutional; challenger bears burden)

Related AG opinions:

• Senator Hammer's letter referenced no prior AG opinion directly; this opinion creates a baseline of "no contemporary state-constitutional answer available" for later researchers.

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Opinion No. 2018-044
April 2, 2019

The Honorable Kim Hammer
State Representative
1411 Edgehill
Benton, AR 72015-3128

Dear Representative Hammer:

You have requested my opinion on a number of questions regarding the citizens' "right to keep and bear arms" under Article 2, section 5 of the Arkansas Constitution. Your questions focus primarily on the constitutionality of current legislative restrictions involving concealed-carry, but you also seek an analysis of other possible restrictions and limitations in light of this constitutional provision.

RESPONSE

I am unable to opine on your questions absent a contemporary judicial examination of Article 2, section 5. As you point out in your correspondence, our appellate courts have addressed this constitutional provision only a handful of times, with most cases dating from the nineteenth century. Given the state of the law, my opinion on the questions you have raised would be speculation.

The absence of any more recent Arkansas case law regarding Article 2, section 5 makes it impossible to predict how Arkansas's appellate courts would approach, much less resolve, the constitutional issues you have raised.

Sincerely,

Leslie Rutledge
Attorney General

Footnote 1: This constitutional provision states in full that "[t]he citizens of the State shall have the right to keep and bear arms, for their common defense." Ark. Const. art. 2, § 5 (Repl. 2004).

Footnote 2: Regarding current legislative restrictions on carrying firearms, a challenge to these restrictions would face the presumption that the statutes "are ... constitutional, and the burden of proving otherwise" falls to the plaintiff. Reinert v. State, 348 Ark. 1, 4, 71 S.W.3d 52, 53-54 (2002).