sopranos27
Regular Member
Interesting read from the Arktimes Blog (http://www.arktimes.com/ArkansasBlog/archives/2013/05/14/morning-report-leaks-guns-and-more#more)
* THE GUN LAW SURPRISE: On the jump, I share a note from a veteran lawyer about the legislation by Rep. Denny Altes that, after the fact, is being interpreted as ending the regulation of weapon carrying in Arkansas. For good or ill, he argues, the gun zealots may be right, no matter what may have been in the hearts and small minds of the legislators who endorsed this bill thinking that it was a technical correction. The only measure of legislative intent is the language of the statute itself. He argues that carrying a weapon, concealed or unconcealed/permit or no, on a "journey" is now legal. A test case will be required to clear the matter up, which is some indication of the haze attending this poorly drafted bit of legislative junk.
First, let me say I am not a law review type. This is certainly not a scholarly dissertation.
In a former life I practiced quite a bit of criminal law. I have tried a fair number of "carrying a weapon" cases. With all of that as introduction, I read the article on the Legislature in the May 9, 2013, edition, and particularly, the section on "Guns." There is a statement as follows:
The one possible doozy was the most obscure: Rep. Altes’ act that quietly redefined “journey” at least according to some gun advocates that carrying a weapon — concealed or open — with or without a license — is allowable so long as a person is journeying from one county to another. It is implausible that this was the Legislature’s intent (a bill allowing open carry failed), but the question will be left to the courts…. The same “journey” exemption would apply to knives, throwing stars, etc., pleasing the traveling ninja lobby.
I hate to disagree with the writer but I believe the implausible is in fact true and correct. The “journey” exception or defense dates back to 1885. The history of law enforcement has generally been that whenever a person was arrested for any offense, whether walking down the street or driving in a car that if the person had a weapon (handgun, knife, club, dirk, or whatever) on his person, in the vehicle, or otherwise readily available, then the person would also be charged with carrying a weapon under A.C.A. § 5-73-120 and its predecessors. The “journey” defense started as case law and then became a part of the statute. The definition utilized by courts for "journey" has been fact based, not defined, and has been varied and included: “beyond the circle of his neighbors”, “not within the routine of daily business”, and “protection against the perils of the highway beyond his accustomed haunts.” No license was required (none existed) and the carrying of the weapon could be either concealed or open.
All of the above is to say a challenge to Act 746 is probably not going to be successful. In fact, an argument could be made that Act 746 now makes the journey defense or exception less available instead of more available. Even more to the point- if I am on a bus with my 20 best friends traveling wherever outside Pulaski County- formerly I may not have been on a journey- now I am. There is a specific case in the past where the journey exception was applied to someone traveling from his hometown to another town within his county of residence but where he “knew only one person.” I will stand to be corrected by the Courts but I believe the law currently is that as long as you are on a "journey" you can carry a handgun on a concealed basis or an open basis without a permit. Journey is now going to be defined as travel beyond the county in which you "live."
As to legislative intent- personally, I do not believe that the body as a whole is capable of forming "intent."
To put this in non-law review terms, if I live in Little Rock, Pulaski County (forget the requirement that it be my legal domicile because Act 746 just says “lives”) and I travel to Pine Bluff and I am wearing my trusty .45 strapped to my waist and I walk down Main Street and am arrested for carrying a weapon in violation of A.C.A. § 5-73-120, then I can use as a defense that I was on a journey outside of the county in which I live. I do not need a permit and the handgun does not have to be concealed. The permit process has nothing to do with this. Let me take this one step further, since my activity is not covered by the permit law then a business, church or university cannot avail itself of a right which it would have under the permit law to prohibit my entry. I agree that there are other restrictions- publicly owned buildings or facilities and that certain persons, convicted felons, cannot avail themselves of this defense.
Max Brantley is the a$$ clown who blogs over there and refers to us as gun nuts and gun zealots...
* THE GUN LAW SURPRISE: On the jump, I share a note from a veteran lawyer about the legislation by Rep. Denny Altes that, after the fact, is being interpreted as ending the regulation of weapon carrying in Arkansas. For good or ill, he argues, the gun zealots may be right, no matter what may have been in the hearts and small minds of the legislators who endorsed this bill thinking that it was a technical correction. The only measure of legislative intent is the language of the statute itself. He argues that carrying a weapon, concealed or unconcealed/permit or no, on a "journey" is now legal. A test case will be required to clear the matter up, which is some indication of the haze attending this poorly drafted bit of legislative junk.
First, let me say I am not a law review type. This is certainly not a scholarly dissertation.
In a former life I practiced quite a bit of criminal law. I have tried a fair number of "carrying a weapon" cases. With all of that as introduction, I read the article on the Legislature in the May 9, 2013, edition, and particularly, the section on "Guns." There is a statement as follows:
The one possible doozy was the most obscure: Rep. Altes’ act that quietly redefined “journey” at least according to some gun advocates that carrying a weapon — concealed or open — with or without a license — is allowable so long as a person is journeying from one county to another. It is implausible that this was the Legislature’s intent (a bill allowing open carry failed), but the question will be left to the courts…. The same “journey” exemption would apply to knives, throwing stars, etc., pleasing the traveling ninja lobby.
I hate to disagree with the writer but I believe the implausible is in fact true and correct. The “journey” exception or defense dates back to 1885. The history of law enforcement has generally been that whenever a person was arrested for any offense, whether walking down the street or driving in a car that if the person had a weapon (handgun, knife, club, dirk, or whatever) on his person, in the vehicle, or otherwise readily available, then the person would also be charged with carrying a weapon under A.C.A. § 5-73-120 and its predecessors. The “journey” defense started as case law and then became a part of the statute. The definition utilized by courts for "journey" has been fact based, not defined, and has been varied and included: “beyond the circle of his neighbors”, “not within the routine of daily business”, and “protection against the perils of the highway beyond his accustomed haunts.” No license was required (none existed) and the carrying of the weapon could be either concealed or open.
All of the above is to say a challenge to Act 746 is probably not going to be successful. In fact, an argument could be made that Act 746 now makes the journey defense or exception less available instead of more available. Even more to the point- if I am on a bus with my 20 best friends traveling wherever outside Pulaski County- formerly I may not have been on a journey- now I am. There is a specific case in the past where the journey exception was applied to someone traveling from his hometown to another town within his county of residence but where he “knew only one person.” I will stand to be corrected by the Courts but I believe the law currently is that as long as you are on a "journey" you can carry a handgun on a concealed basis or an open basis without a permit. Journey is now going to be defined as travel beyond the county in which you "live."
As to legislative intent- personally, I do not believe that the body as a whole is capable of forming "intent."
To put this in non-law review terms, if I live in Little Rock, Pulaski County (forget the requirement that it be my legal domicile because Act 746 just says “lives”) and I travel to Pine Bluff and I am wearing my trusty .45 strapped to my waist and I walk down Main Street and am arrested for carrying a weapon in violation of A.C.A. § 5-73-120, then I can use as a defense that I was on a journey outside of the county in which I live. I do not need a permit and the handgun does not have to be concealed. The permit process has nothing to do with this. Let me take this one step further, since my activity is not covered by the permit law then a business, church or university cannot avail itself of a right which it would have under the permit law to prohibit my entry. I agree that there are other restrictions- publicly owned buildings or facilities and that certain persons, convicted felons, cannot avail themselves of this defense.
Max Brantley is the a$$ clown who blogs over there and refers to us as gun nuts and gun zealots...
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