Enforcement Of Arkansas Open Carry Law Still Split, Call For AG Opinion

Jun 3, 2015

A participant in a 2013 march in Jonesboro by the group Arkansas Carry.
Credit Lilyan Kauffman

Whether or not it is legal to openly carry firearms in Arkansas continues to be mired in uncertainty two years after the law that prompted the question passed the Legislature. 

Renewed interest was sparked this week by comments from Lieutenant Governor Tim Griffin (R) on social media stating he believes open carry is legal.

Griffin’s opinion on the 2013 law - branded at the time as a clean up bill for a law on traveling with a firearm - is supported by Republican Attorney General Leslie Rutledge.

“I have consistent said over the last two years that I interpret ACT 746 to mean an individual may carry so long as he or she does so without the intent to unlawfully employ it against another person,” said Rutledge.

However, Arkansas State Police Public Information Officer Bill Sadler said the law enforcement agency still “refers to the most recent AG opinion” which found open carry is not legal. That non-binding, advisory opinion is by former Democratic Attorney General Dustin McDaniel. Rutledge's office has not issued an official opinion.

While the State Police continue to follow the direction of former AG McDaniel’s advisory opinion, enforcement has been carried out in a piecemeal fashion statewide. Washington County Sheriff Tim Helder has said since 2013 that open carry is legal in the northwest Arkansas county. Like the Lt. Governor, Benton County Sheriff Kelley Cradduck posted his interpretation on social media, “we will not arrest any citizen for simply exercising their right to open carry.”

State Senator Jon Woods (R-Springdale) sat on the committee that passed the 2013 law. Woods said on Wednesday that he will formally ask Attorney General Rutledge to issue an official advisory opinion.

“I’m thrilled and I’m glad that Leslie feels that way but we do need something on the books, an official statement from her office,” said Woods.

Rutledge said her office welcomes the request though had not received as of late Wednesday afternoon.

“I have not issued a formal advisory opinion on the topic of ACT 746, yet,” said Rutledge. “If an opinion is requested of this office…then I will answer the question.”

In the interim the attorney general offered advice for both law enforcement and citizens.

“It’s a decision for the law enforcement officer at the time when they ask questions of an individual carrying a firearm. Arkansans should be very comfortable knowing that if they are responsible and respectful and not committing a crime then they will be able to carry,” said Rutledge. “I would encourage people, if they have questions to reach out to their local prosecutor. It’ll be the prosecutor who makes the decision.”

Rutledge’s direction for prosecutors was echoed by the Pulaski County Sherriff’s Office. The agency in the state’s most populous county directed open carry inquiries to the 6th Judicial District Prosecuting Attorney. Chief Deputy Prosecuting Attorney John Johnson said the office doesn’t give advisory opinions and instead “applies the law to specific facts.”

State Senator Woods, who has served in the Legislature since 2007, said he will personally make an effort to file clarifying legislation in the next regular session if the need for it still exists as he believes it does now.

“What about the county sheriffs and law enforcement across the state that don’t think we have open carry. What do we do about those constituents that need help and want to exercise their second amendment right to open carry?”

Woods identified a lack of committee support and apprehension an attempt to clarify the 2013 law would detract from interpretations that open carry is already legal as key reasons why legislators didn’t file a clarifying bill in the 2015 regular session despite voices, including his own, calling for legislative clarification in the summer of 2013 after open carry marches by advocates pushed the interpretation that the law legalizes open carry. That interpretation was not recognized by many legislators as the intent of the bill as understood at the time of the vote, though some now say the bill does allow for open carry.

“There’s not the support for it on the Senate Judiciary Committee for it currently. You have four Democrats and four Republicans on the committee right now. I don’t think there’s more than four votes there and you need five to get it out of the Senate Judiciary Committee,” said Woods. “The people that are pro-gun are saying don’t run an open carry bill because then you’re indicating we don’t already have it on the books."

But before the next regular session of the Legislature rolls around Woods expects an official opinion from Attorney General Rutledge’s office. The content of that advisory opinion could change Woods’s mind on the need for future legislation.

“If the attorney general comes back with some findings and says, ‘hey this is why I think we have open carry now’ then I would back off filing legislation."