Does Arkansas concealed-carry law restrict open carry, and have Arkansas State Police rules overstepped the statutes?

Plain-English summary

State Representative John Payton asked the AG four interlocking questions about whether Arkansas's concealed-carry law restricts open carry by a license holder, the impact on hunting applications, whether Act 746 of 2013 superseded earlier contradictory provisions, and whether the Arkansas State Police had exceeded its statutory authority in promulgating implementing rules.

Attorney General Leslie Rutledge respectfully declined to answer. The same statutory interpretation questions were on appeal in Tanner v. Department of Arkansas State Police, a case pending in Pulaski County Circuit Court at the time. The AG's longstanding policy is to refrain from opining on matters pending before the courts because the proper resolution belongs to the judicial forum. She referred the representative to the pending case.

Currency note

This opinion was issued in 2016. 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.

Why the AG declines pending-litigation questions

The AG cited a line of her own opinions (Op. Att'y Gen. Nos. 2015-140; 2015-005; 2010-047, and opinions cited therein) for the abstention policy. The reasoning is that AG opinions are advisory and not binding on courts. Issuing an opinion on the same statutory question being litigated risks creating the appearance that the executive branch is trying to influence the judicial branch's resolution. By stepping back, the AG lets the courts settle the meaning of the statute, then later opinions can apply the court's holding.

The AG's policy does not preclude opinions on related questions outside the litigation's scope. It only avoids questions whose answers turn on the same statutory analysis the court will perform.

Context: Act 746 of 2013 and the open-carry debate

The questions in the request referred to Act 746 of 2013, which amended Arkansas's carry statutes. After Act 746, supporters argued the statute permitted open carry of a handgun by a person on a journey or travel, while law enforcement and the Arkansas State Police's implementing rules took a narrower view. Tanner v. Department of Arkansas State Police was one of the cases that asked the courts to resolve the dispute. The AG's deferral meant interested parties had to wait for the judicial answer.

The opinion does not include a substantive interpretation of the statutes the representative asked about. Anyone researching the open-carry question for that era needs to look at the eventual disposition of Tanner, later Arkansas Supreme Court decisions, and any AG opinions issued after the courts had ruled.

Common questions

Does this opinion mean Act 746 did not legalize open carry?
No, the opinion takes no position. It says only that the AG would not answer while the courts were considering the question. Anyone trying to derive a substantive conclusion from this opinion is reading something into it that is not there.

Why does the AG's policy matter?
AG opinions are persuasive but not binding. Even so, they are often relied on by state agencies and local officials. By declining to issue an opinion on an actively litigated issue, the AG avoids creating an authoritative-looking gloss that could affect how lower courts or agencies interpret the case before it is decided.

Can the AG be forced to opine on a pending question?
No. The AG's authority to issue opinions is discretionary, and the abstention policy is one of several limits the office places on its own opinion writing. Other limits include refusing to opine on contract construction (see Opinion 2015-146) and refusing to act as a factfinder (see Opinion 2015-136).

Source

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

Original opinion text

Opinion No. 2016-003
January 21, 2016
The Honorable John Payton
State Representative
P. O. Box 181
Wilburn, AR 72179-0181
Dear Representative Payton:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
This is in response to your request for my opinion on the following questions:

1. Does Arkansas concealed carry law restrict open carry by a licensee?
2. If so, how would this affect hunting applications?
3. Would Act 746 of 2013 supersede any previous Code provision that is in contradiction?
4. Have rules promulgated by the Arkansas State Police exceeded restrictions in the Code?

RESPONSE

I must respectfully decline to answer these questions, which turn on the proper interpretation of the Arkansas concealed-carry licensing law (Ark. Code Ann. § 5-73-301 et seq. (Repl. 2005 and Supp. 2013)). That body of law is currently the subject of litigation on appeal to the Pulaski County Circuit Court in a case styled Tanner v. The Department of Arkansas State Police, Case No. 60CV-15-3197 (July 15, 2015). The issues raised in your request for my opinion require analysis of issues raised in this pending case. My office adheres to the longstanding policy of the Attorney General's office, as a member of the executive branch, to decline to issue opinions on matters that are pending before the courts for resolution. The answers to these questions must be provided in the judicial forum.

While I cannot be of assistance in this instance, please feel free to contact me if I may be of assistance in some other matter.

Sincerely,
LESLIE RUTLEDGE
Attorney General