Is it a crime in Arkansas to carry a concealed handgun in public without a concealed-carry license?

Plain-English summary

Senator Linda Collins-Smith asked AG Leslie Rutledge whether any Arkansas statute imposed an express penalty for carrying a concealed handgun in public without a concealed-carry license. The AG took a careful, three-part position:

1. No express statutory penalty for merely carrying a concealed handgun without a license. No general provision of Arkansas law in 2018 said that the bare act of carrying a concealed handgun without a license carried a specific criminal penalty. Express penalties did exist for carrying a concealed handgun into specific prohibited locations.

2. The legality itself was unclear. The existence of a statutory concealed-carry licensing regime suggested that licensure was the lawful way to carry concealed in Arkansas. Section 5-73-310(7) referred to a concealed-carry license as the "legal means to carry a concealed handgun." Section 5-73-120(c)(8) provided a safe harbor making it permissible to carry "if the person is in possession of a concealed handgun and has a valid license to carry a concealed handgun . . . and is not in a prohibited place." The statute did not say the same about carrying without a license.

3. A judicial presumption of unlawful intent could attach. Per AG Op. 2015-064, the AG had previously observed that Arkansas Supreme Court precedent might support a (rebuttable) presumption that a person carrying a concealed handgun without a license has "the intent to attempt to unlawfully employ the handgun as a weapon against a person." That presumption, if applied, could lead to conviction under section 5-73-120(a) (carrying a weapon), and in any event could provide reasonable suspicion or probable cause for police inquiry and detention.

The AG explicitly recommended that the General Assembly clarify the law, either by making clear that license-less concealed carry is permissible, or by stating clearly that the absence of a license is irrelevant to the carrying-a-weapon offense. She also noted, in a footnote, her constitutional view that the state must allow either open carry without a license, concealed carry without a license, or both, with Arkansas already allowing open carry without a license.

Currency note

This opinion was issued in 2018. 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.

Common questions

Q: Did Arkansas in 2018 have a "constitutional carry" or permitless concealed carry law?
A: The opinion's analysis is exactly the answer to that question: it was unclear. The state had a concealed-carry licensing regime; the carrying-a-weapon statute had a safe harbor for license holders but did not expressly authorize unlicensed concealed carry. The AG urged legislative clarification.

Q: What is "carrying a weapon" under Ark. Code Ann. § 5-73-120(a)?
A: It is a criminal offense for which the prosecution must show that the person possessed a handgun, knife, or club with the purpose to attempt to unlawfully employ it as a weapon against a person. The intent element is the focal point of the statute.

Q: What was the worry about a judicial "presumption"?
A: The AG was flagging that Arkansas Supreme Court precedent could be read to allow a court to infer the necessary unlawful intent from the bare fact of carrying concealed without a license. The AG was not endorsing that inference, but warning that the precedent existed and could lead to arrest, prosecution, and conviction.

Q: What about carrying a concealed handgun in a car "upon a journey"?
A: Section 5-73-120(c)(4) created an exception: it was generally permissible to conceal a handgun in one's car while "upon a journey" without a license. The phrase "upon a journey" is itself a term of art the AG had analyzed in Op. 2015-064.

Q: What did the AG suggest for the legislature?
A: Either clearly authorize unlicensed concealed carry as lawful, or clearly state that the absence of a license is not evidence of unlawful intent under § 5-73-120. Without one of those moves, carriers, officers, and courts were left guessing.

Q: Why is this opinion unusual in tone?
A: It is openly cautionary. The AG was reading existing law with care for a constitutional right context, but flagging that the existing statutory and case law mix could expose law-abiding citizens to arrest. That is a relatively rare posture for an AG opinion.

Q: Did this opinion change the law?
A: No. AG opinions are persuasive but not binding. The opinion was a call for legislative action.

Background and statutory framework

Arkansas's concealed-carry framework had been adjusted several times before 2018, with the most relevant 2013 changes leaving a gap the AG identified twice (in 2015 and again in this 2018 opinion). The AG had previously urged the legislature to act in Op. Att'y Gen. 2015-064. The legislature had not done so by the 2017 session.

The Arkansas open-carry rule (allowing open carry without a license) is the constitutional baseline the AG identified. With open carry allowed and the concealed-carry status uncertain, the AG saw a Second Amendment puzzle: as a constitutional matter, the state must allow either open or concealed carry without a license, and the open-carry side is settled.

Citations and references

Statutes:

• Ark. Code Ann. § 5-73-120(a) (carrying a weapon)
• Ark. Code Ann. § 5-73-120(c)(4) (upon a journey exception)
• Ark. Code Ann. § 5-73-120(c)(8) (concealed-carry license safe harbor)
• Ark. Code Ann. § 5-73-310(7) (concealed-carry license as "legal means")

Prior AG opinions referenced:

• Op. Att'y Gen. 2015-064 (analysis of "upon a journey" and the same gap; recommendation to legislature)

Source

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

Original opinion text

Opinion No. 2018-002
June 15, 2018

The Honorable Linda Collins-Smith
State Senator
P.O. Box 90
Pocahontas, AR 72455-0090

Dear Senator Collins-Smith:

You have requested my opinion as to whether there is a provision of Arkansas law that expressly provides a penalty for carrying a concealed handgun without a license. There is no such provision. There are of course express penalties associated with carrying a concealed handgun into certain limited locations. But I understand your question to focus only on the more generic situation of an average citizen walking down a public sidewalk with a concealed handgun.

It is incredibly important for Arkansans to have a complete and accurate picture regarding the potential consequences of carrying a concealed handgun without a concealed-carry license. Given the current state of the law, it is not entirely clear whether it is lawful to carry a concealed handgun without a concealed-carry license. Moreover, and relatedly, it is not entirely clear whether carrying a concealed handgun without a concealed-carry license will expose a citizen to conviction for "the offense of carrying a weapon." Legislative clarification is certainly warranted.

As I explained in Attorney General Opinion 2015-064, the existence of the concealed-carry statutory regime suggests that having a concealed-carry license is the lawful way to carry a concealed handgun in Arkansas. Limited exceptions do exist, however. For example, it is generally permissible to conceal a handgun in one's car while "upon a journey" without a concealed-carry license. The term "upon a journey" is a term of art, which is described in Opinion 2015-064. Indeed, one statute in that regime even acknowledges that a concealed-carry license represents the "legal means to carry a concealed handgun . . . ."

Moreover, as I explained in Opinion 2015-064, current caselaw from the Arkansas Supreme Court indicates that courts might apply a presumption that a person carrying a concealed handgun without a concealed-carry license has the intent "to attempt to unlawfully employ the . . . handgun as a weapon against a person." To be clear, I am not stating that I agree with the application of this presumption, but it is my responsibility to alert Arkansans that current court precedent suggests the presumption might be used. This presumption, if applied, could expose the person to arrest and conviction under section 5-73-120 (entitled "Carrying a weapon").

Indeed, section 5-73-120 implies that carrying a concealed handgun without a concealed-carry license could expose a person to arrest and conviction for the "offense of carrying a weapon." The statute explicitly states that it is "permissible to carry" if the person "is in possession of a concealed handgun and has a valid license to carry a concealed handgun . . . and is not in a prohibited place . . . ." But the statute does not say the same about carrying a concealed handgun without a concealed-carry license. A court might imply from the statutory language that carrying a concealed handgun without a concealed-carry license is not "permissible" and thus shows the intent necessary to violate section 5-73-120(a).

Of course, a person arrested for a violation of section 5-73-120(a) could argue that the fact he was carrying a concealed handgun without a concealed-carry license does not justify a presumption that he had the intent "to attempt to unlawfully employ the . . . handgun as a weapon against a person." But it is my responsibility to advise that, based on the current state of precedent from the Arkansas Supreme Court, there is a real chance such an argument could fail, and the courts will apply a (rebuttable) presumption of mal-intent. Or, at least, the courts will allow the carrying of a concealed handgun without a concealed-carry license to be used as evidence of mal-intent. Given the foregoing, the courts may also conclude that carrying a concealed handgun without a concealed-carry license provides reasonable suspicion (and potentially probable cause) for a law-enforcement officer to detain a citizen and make inquiries regarding his intent.

As I pointed out in 2015, legislators can easily change or clarify the law. Legislators can, by a vote of the General Assembly, make absolutely clear that a person may lawfully possess a concealed handgun in Arkansas without obtaining a concealed-carry license, and make absolutely clear that carrying a concealed handgun without obtaining a concealed-carry license is not at all relevant to the offense set forth in section 5-73-120(a). Arkansans would benefit from additional legislative clarity in this area.

I have not been asked to opine on the constitutionality of our concealed-carry regime. As a general matter, I will note that the Second Amendment's right to keep and bear arms must be respected. In my opinion, the state must allow either (1) open carry without a license, (2) concealed carry without a license, or (3) both. As I explained in Attorney General Opinion 2015-064, Arkansas allows open carry without a license.

It is imperative that law-abiding Arkansans are fully informed of their rights and that those rights not be infringed. It is equally important that the brave men and women in law enforcement have a clear understanding of current law in order to determine an individual's intent so that the officers may continue to promote public safety and hold those accountable who violate the law. Confusion surrounding how, when and where an individual may lawfully, freely exercise his or her Second Amendment right to bear arms has increased since the law was changed in 2013. Although confusion of this issue has remained since 2013, the legislature has not passed language during either the 2015 or 2017 legislative sessions to clarify the law. As Attorney General, I will continue to ask the legislature to do so, and I will work with them to ensure any law passed will be constitutional.

Sincerely,

Leslie Rutledge
Attorney General