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October 19, 2018, 06:02 AM | #1 | |
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Arkansas: Taff v. State
Arkansas has a statute on the crime of "Carrying a Weapon." Ark. Code Ann. 5-73-120. For the longest time, that statute said something pretty close to "(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." (It's early and I don't feel like doing historical legal research on only 1 cup of coffee.)
In 2013, our General Assembly enacted Act 746. That changed the statute to say "(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." Ark. Code Ann. § 5-73-120 (West) I've underlined the language that was added. There was quite the hubbub here in Arkansas with a bunch of folks claiming that we'd gone constitutional carry. I was very cautious about that, because I didn't really need one of my friends going to jail while screaming "My buddy Spats said we're constitutional carry! Ah know mah rahts!!!" Yesterday, the Arkansas Court of Appeals issued Taff v. State, which was an appeal from a conditional guilty plea. The trial court had denied Mr. Taff's motion to suppress, but the Court of Appeals reversed. Mr. Taff had been seen going in and out of a store several times, possibly with a gun. The store owner called it in, and the police went to check it out. The officer activated his blue lights when he saw Mr. Taff walking down the highway, turned around, and made contact with Taff. In the end, the court ruled that it was an illegal seizure and suppressed the evidence. For TFL purposes, here's the important part: Quote:
Y'all, I believe Arkansas really is permitless carry now.
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October 19, 2018, 09:21 AM | #2 | |
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That's an excellent, succinct and clear summary.
This part caught my eye. Quote:
Is the result here the same as constitutional carry? If a PO discerns an unlawful purpose even where no unlawful behavior has occurred, isn't a person still culpable for carry an arm under the code? Of course, legal permitless carry unless a PO testifies as to an illicit purpose is a huge step forward. This sounds like it may leave a prosecutor with a redundant charge he can bargain away in the event someone actually employs an arm in a crime. If you and I have a disagreement, and I know you carry, will my testimony that you meant to engage in menacing support a conviction for menacing and the unlawful purpose of carrying a firearm while you engaged in the unlawful conduct?
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October 19, 2018, 02:00 PM | #3 | ||
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I think so. My understanding of constitutional carry is simply that carry, open or concealed, without a gov't permit, is allowed. I don't understand it to mean that carrying to an ex-wife's house with murder on my mind can't be criminalized. As it stands in Arkansas, after this decision, and in conjunction with AG Opinion 2018-2 (I think it was), carrying without a CHCL is clearly not a crime.
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Solely your testimony? I guess it depends on how bitter the disagreement is, what I say during the dispute, and a few other circumstances. If I say that "I'm gonna pop you," and I'm pulled over 10 minutes later with a gun in the car, probably. OTOH, if we have a relatively minor dispute, I don't say that, and I'm pulled over the next day, probably not.
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October 22, 2018, 12:17 PM | #4 |
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Does this mean that they also honor states permit less carry?
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October 23, 2018, 04:38 AM | #5 |
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First of all, please read the caveat in my sig line.
More or less, yes. In a perhaps hyper-technical sense, it's not so much about an out-of-state permit. What this really did was settle the argument over "whether concealed carry without a permit is a crime." The Court of Appeals says that it is not. The statute on Carrying a Weapon (Ark. Code Ann. § 5-73-120) makes reference to a "person" engaged in certain conduct. Not "a resident of Arkansas," or "of another state." So it applies the same to everyone. By my reading, someone passing through Arkansas, if someone is legally permitted to possess a handgun, he or she may lawfully carry the same, either openly or concealed.
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October 23, 2018, 08:49 PM | #6 | ||
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Quote:
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October 23, 2018, 09:32 PM | #7 |
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Thanks, KyJim. I guess I've been misuing the term, and will correct my OP.
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October 24, 2018, 01:07 AM | #8 | |
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Ohio is a good example of KyJim's point. Until a few years ago, Ohio didn't have provision for concealed carry permits. (At least, this is the way I remember it going down.) But the Ohio state constitution has a provision protecting the right to bear arms.
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Of course, my state's constitution has a similar provision, but I won't hold my breath waiting for a judge here to rule that permitless open carry is legal. FYI: http://www2.law.ucla.edu/volokh/beararms/statecon.htm |
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October 24, 2018, 05:44 AM | #9 | |
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Well, then, I guess I'll be asking questions in the legal forum today. And about my own state, no less!
Arkansas has always had a provision for the bearing of arms, well, at least since 1874: Quote:
5-73-120 (Carrying a Weapon) was first enacted in 1975, and we got our concealed carry law in 1995. Our statutes have never actually said "No person shall carry a firearm concealed on his or her person unless he or she has a CHCL." This year, our AG confirmed that there is in fact no penalty for carrying a handgun concealed without a license. So anyone caught carrying concealed without a license was prosecuted under 5-73-120. The Taff case makes no mention of a CHCL*, and says def was carrying a pistol in his waistband, IIRC. Our Ct App says, "So? that's not a crime." So where does that leave Arkansas? Are we constitutional carry? Or just permitless? *=I know Bill James & Michael Kaiser, defendant's lawyers. They would have raised it if def had a CHCL.
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October 24, 2018, 09:22 AM | #10 | |||||
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My take is that, while many state constitutions purport to guarantee a right to bear arms, none state outright that the state may not regulate the mode of carry. That's what led to the case in Ohio that eventually resulted in a concealed carry law and permit structure. My understanding (I think from Al Norris) is that, many years before Ohio, something similar happened in Idaho. (Brickey, IIRC] Those states whose constitutions guarantee (or purport to guarantee) a RKBA generally don't address the mode of carry (open vs. concealed). A few of them do; look at Colorado, for example: Quote:
Consequently, we have to face the fact that, at least in some states, "constitutional" carry may be limited to one OR the other mode of carry. In Colorado, the language of the constitution makes it plain that while carry is a constitutional right, concealed carry is not. In Ohio, the court ruled that "carry" was a protected right, but the mode of carry was not specified. The legislature had made concealed carry a crime, therefore (the court said) open carry was allowed as the only other way for a citizen to exercise the constitutional right. Then look at Florida: Quote:
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TL;DR version: "Constitutional carry" does not automatically equate to permitless concealed carry. (IMHO) I think Arkansas is "permitless." |
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October 24, 2018, 10:17 AM | #11 | |
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KYJim's point is interesting; if people carry, but not pursuant to a constitutional provision, they have a condition of statutory carry. Ohio's history on this is queer. Yes there is a constitutional right. "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power." Apparently this meant that the courts and legislature could do as they pleased. Cleveland instituted an echo of the 94 AWB. A clever defendant objected that the law abridged his state RTKB. The Ohio Supreme Court upheld the ban with much the same reasoning the US Sup Ct rejected in Caetano -- not all weapons were banned, so prosecuting someone for carrying a weapon within a prohibited class was fine. It's true that the OH Sup Ct when confronted with a de facto ban on all weapons carry held that open carry was protected under the OH Constitution. But what was "concealed carry" in Ohio? In some jurisdictions, it was carrying a weapon a PO couldn't see. People who openly carried in holsters were successfully prosecuted if the PO testified that he could not see the holstered weapon as he approached the defendant from the defendant's weak side. The General Assembly did pass a concealed carry law, though a common pleas judge seated in Cleveland ruled that the state licenses did not prohibit the City from prosecuting people for concealed carry. She was reversed, but it illustrates a couple of cultural problems. A person with an OH permit can carry concealed in OH, but it doesn't appear to spring from a constitutional right within the state.
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October 24, 2018, 09:54 PM | #12 |
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Spats, I know absolutely nothing about Arkansas law but I find the constitutional phrasing potentially subject to an interpretation that would allow carry only with a militia or similar organization. Perhaps there are decisions which say otherwise and that seems to be what your AG is saying.
I will add that my own state (Kentucky) used a rational basis analysis to review our state constitutional provision when it reviewed a criminal case that came out before McDonald and Heller. I complained about it on this forum because a rational basis test effectively strips out much of the protection our state constitution meant to provide. Unfortunately, the case came up on a bad set of facts --- a clear case of a convicted felon in possession of a firearm, contrary to an express criminal prohibition. The court could have come to the same conclusion using a more stringent test but didn't have the guidance McDonald and Heller could have provided. |
October 25, 2018, 01:05 PM | #13 | |
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Quote:
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October 25, 2018, 06:34 PM | #14 | |
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From the link I provided in post #8:
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October 25, 2018, 08:54 PM | #15 |
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PA constitution
The PA constitution reads differently.
Article I, Section 21 of the Pennsylvania State Constitution states: "The right of the citizens to bear arms in defense of themselves and the State shall not be questioned." It is my understanding that it was once considered to go into the bill of rights. Alas, it didn't get there.
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October 25, 2018, 11:16 PM | #16 | |
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Wouldn't it be simple enough to just join a militia or similar organization . Better yet just organize one your self ??? Or is there some other legal aspect to a militia or similar organization that is regulated in such a way that not just anybody can start one them selves or join one that already exist ?? I remember having this conversation with some anti family members . When they tried to say the RKBA is only for militia's . I said fine , I'll join the CA militia . Now can I have all the firearms I want ??? They just looked at me funny for a second knowing they got cornered and said no and went on a rant of bla bla bla we don't need militias cus the National guard . OK so what your saying is " We're not saying you can't swim , we're just draining the pool you can still swim if you want ???
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October 26, 2018, 10:47 AM | #17 | ||
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The parallel between Arkansas and Massachusetts is strong:
Arkansas: Quote:
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Note the difference between these states and, for example, Pennsylvania, which stipulates a right the bear arms "in defense of themselves and the State." |
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