Attorney General Leslie Rutledge, who likes to describe herself as a gun-toting Christian, declined to toss some gun-toting red meat to a senator in an official opinion request disclosed today.
State Sen. Kim Hammer (R-Benton) asked:
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Does Ark. Const. art. 2, section 5, which is different than that found in the Second Amendment of the United States Constitution, expand on the rights granted to a person under the Second Amendment? If so, to what extent? Q2) Does art. 2,sec. 5, preclude an Arkansas statutory ban on (1) handguns, (2) so-called assault weapons, (3) silencers, (4) bump stocks, or (5) ammunition magazines that hold over a certain number of bullets (often 10)? Further, please provide examples of legislative restrictions that would either pass or fail constitutional law. Q3) What standard of review would the Ark. S. Ct. use in determining whether the statutory limitation is valid under art. 2, section 5? Q4) Does art. 2, sec. 5, in any manner override the concealed handgun licensing scheme as is currently administered by the State? If so, how? Q5) Does the recent addition of other statutory requirements to obtain a license to carry a concealed handgun in certain contexts (such as “campus carry”) violate art. 2, sec. 5? Q6) What rights to the citizens of Arkansas have under art. 2, sec. 5, to carry and possess a concealed handgun without the requirement to obtain a license to carry and possess a concealed handgun? Q7) Does art. 2, sec. 5, permit a person to carry a concealed handgun in a public place, without a license, if he or she is not otherwise committing a criminal offense? Q8) Does art. 2, sec. 5, permit a person to carry a unconcealed rifle or shotgun in a public place, without a license, if he or she is not otherwise committing a criminal offense? Q9) Does art. 2, sec. 5, in any manner override the criminal prohibitions against carrying or possessing a firearm, either openly or concealed, currently codified under Section 5-73-110, et seq.? If so, to what extent?
The attorney general’s response:
I am unable to opine on your questions absent a contemporary judicial examination of Article 2, section 5. The state’s appellate courts have only addressed this constitutional provision a few times, with most cases dating from the 19th century. The absence of more recent case law regarding Article 2, section 5 makes it impossible to predict how Arkansas’s appellate courts would approach, much less resolve, the constitutional issues you have raised.
The legislature has moved to address some of these questions in statutes. But, as yet, apart from a legally meaningless resolution, it has not moved to declare by statute that Arkansas is a “constitutional carry” state, where anyone may carry openly or in concealment without a permit.
To the extent the attorney general declined an opportunity to interpret the Constitution as to guns, we should welcome some rare restraint.