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Taff V. State: the Logical Albeit Delayed Conclusion to the Legislature's 2013 Amendments to Arkansas's Carrying-A-Weapon

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Taff V. State: the Logical Albeit Delayed Conclusion to the Legislature's 2013 Amendments to Arkansas's Carrying-A-Weapon Taff v. State: The Logical Albeit Delayed Conclusion to the Legislature’s 2013 Amendments to Arkansas’s Carrying-a-Weapon Statute. Michael Kiel Kaiser* Andrew P. Thornton** In the 2019 legislative session, both houses of the Arkansas General Assembly passed resolutions declaring that Arkansas is a constitutional-carry state in light of the Arkansas Court of Appeals’ 2018 decision in Taff v. State.1 On February 14, 2019, the Arkansas House of Representatives adopted a resolution declaring: Whereas, the citizens of the state deserve clarity in regard to gun rights and gun laws; and Whereas, in the recent Jamie Taff v. State of Arkansas (2018 Ark. App. 488) case, the Court of Appeals gave judicial clarity and affirmed that Arkansas is a constitutional carry state, with no permit reQuired to carry a handgun, either unconcealed or concealed, Now therefore, be it resolved . .that the House of Representatives acknowledge[s] this decision for the clarity it provides to the citizens of the state in regard to gun rights.2 The Resolution’s impetus was not any recent enactment of the General Assembly or some new decision from the Supreme Court of the United States, but rather from a decision of the Arkansas Court of Appeals in Taff v. State.3 According to the resolution, this decision from Arkansas’s intermediate appellate * Attorney, Lassiter & Cassinelli, Little Rock, AR; J.D. 2014 cum laude, University of Arkansas School of Law; 2011 B.A. University of Pennsylvania, PhilaDelphia, PA. Mr. Kaiser argueD the Taff case at both the trial anD appellate levels. ** Deputy Public DefenDer, Sixth JuDicial District, Little Rock, AR, J.D. 2016 Georgetown University Law Center, Washington, D.C.; 2011 B.A. University of Chicago, Chicago, IL. Both authors are members of the Arkansas Supreme Court Historical Society. 1. 2018 Ark. App. 488, 562 S.W.3d 877. 2. H.R. Res. 1013, 92D Gen. Assemb., Reg. Sess. (Ark. 2019) (emphases in original). 3. 2018 Ark. App. 488, 562 S.W.3d 877. 20 ARKANSAS LAW NOTES 2020 court “gave judicial clarity and affirmed” Arkansas’s status as a “constitutional carry state.”4 On March 26, 2019, the Arkansas Senate adopted an identical resolution.5 However, far from announcing any sort of “constitutional carry” revolution, Taff merely affirmed the clear language of the legislature’s 2013 amendment to the statute defining the crime of carrying a weapon.6 Taff is no more a Second Amendment case than Arkansas a Canadian province. Rather than legislating its preferred path regarding the right to carry—constitutional or otherwise—the Arkansas General Assembly chose political expediency over substantive change. Far from clarifying Arkansas’s gun laws as the resolutions intended, these resolutions only further muddied the already murky depths of Arkansas law regarding the carrying of weapons. I. The Crime of Carrying a Weapon in Arkansas Carrying a weapon has been proscribed in Arkansas since 1838. The earliest version of the law against carrying weapons barred carrying “any pistol, dirk,[7] butcher or large knife, or a sword in a cane, concealed as a weapon, unless upon a journey.”8 The penalty was one to six months in the county jail and a fine of $25 to $100.9 Half the fine was paid to the “informer” who turned in the defendant.10 In 1860 the jail time was dropped from the penalty, and the bounty paid to the informer was also removed.11 So, from 1860 to 1875, the concealed-weapons law thus read: 4. Ark. H.R. Res. 1013. 5. S. Res. 18, 92D Gen. Assemb., Reg. Sess. (Ark. 2019). 6. Act of Apr. 4, 2013, No. 746, § 2, 2013 Ark. Acts 2783, 2785–87 (coDifieD at ARK. CODE ANN. § 5–73–120). 7. “[A] long straight-bladed dagger formerly carried esp[ecially] by the Scottish HighlanDers.” Dirk ¶ I.1, WEBSTER’S THIRD NEW INTeRNATIONAL DICTIONARY (1961) [hereinafter WEBSTER’S THIRd]. 8. WILLIAM MCK. BALL & SAMUEL C. ROANE, REVISED STATUTES OF THE STATE OF ARKANSAS c. 44, Div. 8, art. 1, § 13, p. 280 (1838), reprinted in E. H. ENGLISH, A DIGeST OF THE STATUTES OF ARKANSAS c. 51, pt. 9, art. 3, § 13, p. 377 (1848); and reprinted in JOSIAH GOULd, A DIGeST OF THe STATUTES OF ARKANSAS c. 51, pt. 9, art. 3, § 13, pp. 381– 82 (1858) [hereinafter GOULd’S DIGeST]. 9. GOULd’S DIGeST, supra note 8, c. 51, pt. 9, art. 3, § 13, pp. 381–82. 10. GOULd’S DIGeST, supra note 8, c. 51, pt. 9, art. 3, § 13, pp. 381–82. 11. Act of Nov. 29, 1860, unnumbereD, 1860 Ark. Acts 5, 5–6, reprinted in EDWARD W. GANTT, A DIGeST OF THe STATUTES OF ARKANSAS § 1517, p. 367 (1874) [hereinafter GANTT’S DIGeST]. 2020 TAFF V. STATE 21 Every person who shall wear any pistol, dirk, butcher or large knife, or a sword in a cane, concealed as a weapon, unless upon a journey, shall be adjudged guilty of a misdemeanor, and, upon conviction thereof, shall be fined in any sum not less than twenty-five dollars nor more than one hundred dollars.12 In 1875 the General Assembly passed “[a]n act to prohibit the carrying of side-arms, and other deadly weapons.”13 Notably the legislature made it a crime to carry any of the named weapons openly or concealed. It is thus the earliest ancestor to the modern statute. It amended the existing statute as follows (additions are underlined, excisions struck): Every [A]ny person who shall wear or carry any pistol of any kind whatever, or any dirk, butcher or large bowie knife[14], or a sword or a spear in a cane, brass or metal knucks,[15] or a razor, concealed as a weapon, shall be adjudged guilty of a misdemeanor, and upon conviction thereof . .shall be fined in any sum not less than twenty-five nor more than one hundred dollars . ..16 The law did not apply when a person was on his own premises or on a journey, and it also did not apply to “officers of the law”: Provided, That nothing herein contained shall be so construed as [a] to prohibit any person, wearing or carrying any weapon aforesaid on his own premises, [b] or to prohibit persons traveling through the country carrying such weapons while on a journey with their baggage [c] or to prohibit any officer of the law wearing or carrying such weapons when engaged in the discharge of his official duties, or any person summoned by any such officer to assist in the execution of any legal process, or any private person legally authorized to execute any legal process to him directed.17 In 1881 the General Assembly amended the law to exclude “such pistols as are used in the army or navy of the United 12. GANTT’S DIGeST, supra note 11, § 1517, p. 367. 13. Act of Feb. 16, 1875, unnumbereD, § 1, 1875 Ark. Acts *155, *155 (1882 reprint). 14. “[A] large hunting knife adapted especially for knife-fighting . ..” Bowie ¶ II, WEBSTER’S THIRd, supra note 7. 15. That is, brass knuckles. Brass knucks, WEBSTER’S THIRd, supra note 7. 16. Act of Feb. 16, 1875, unnumbereD, § 1, 1875 Ark. Acts at *115–16 (1882 reprint). 17. Act of Feb. 16, 1875, unnumbereD, § 1, 1875 Ark. Acts at *115–16 (1882 reprint). 22 ARKANSAS LAW NOTES 2020 States.”18 A person could now carry an army or navy pistol, but only if “uncovered, and in his hand.”19 The special treatment was apparently born of the idea that the Second Amendment prohibited the states from restricting possession of firearms that were commonly used by the armed forces.20 The law was amended slightly in 1909 but otherwise remained unchanged until 1941.21 At that time the General Assembly expanded the list of forbidden weapons to include “blackjack,22 billie,23 sap,24 or ice-pick.”25 The new criminal code of 1975 did not include the offense of carrying a weapon.26 But the legislature did replace the carrying-a-weapon statute later in the same session: (1) A person commits the offense of carrying a weapon if he possesses a handgun, knife, or club on or about his person, in a vehicle occupied by him, or otherwise readily available for use with a purpose to employ it as a weapon against a person. (2) For purposes of this section: 18. See Act of Apr. 1, 1881, No. 96, §§ 1–2, 1881 ARK. ACTS 191, 191–92, reprinted in W. W. MANSFIeLd, A DIGeST OF THe STATUTES OF ARKANSAS §§ 1907–1908, p. 490 (1884); and reprinted in L. P. SANDELS & JOSePH M. HILL, A DIGeST OF THE STATUTES OF ARKANSAS §§ 1498–1499, pp. 505–506 (1894); and reprinted in WILLIAM F. KIRBY, A DIGeST OF THe STATUTES OF ARKANSAS §§ 1609–1610, pp. 496–97 (1904) [hereinafter KIRBY’S DIGeST]. 19. KIRBY’S DIGeST, supra note 18, §§ 1609–1610, pp. 496–97. 20. Charles NestruD, Legislative Note, Act 696: Robbing the Hunter, or Hunting the Robber?, 29 ARK. L. REV. 570, 573 & n.21 (1976) (citing ARK. CRIM. CODE § 3103 cmt. (ProposeD Official Draft, Dec. 1974); Fife v. State, 31 Ark. 455 (1876)). 21. Act of May 31, 1909, No. 322, § 1, 1909 Ark. Acts 949, 949–50, reprinted in JOHN T. CASTLe, SUPPLeMeNT TO KIRBY’S DIGeST OF THe STATUTES OF ARKANSAS § 1609, pp. 154–55 (1911); and reprinted in WILLIAM F. KIRBY & JOHN T. CASTLe, DIGeST OF THe STATUTES OF ARKANSAS § 1697, pp. 580–81 (1916); and reprinted in T. D. CRAWFORD & HAMILTON MOSeS, DIGeST OF THe STATUTES OF ARKANSAS § 2804, pp.
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