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Governor Usurps Legislature’s Power: Handgun Instructors

By David Ferguson

Governing like Obama? “I’ve got a pen and I’ve got a phone.”

The handgun license law called “enhanced carry” is a mess. Many gun rights advocates opposed it because of its restrictions and the regulatory minefield it created for those who want such a license.

One of the dumb provisions in this law requires a handgun instructor to teach an enhanced carry course whenever the instructor teaches a regular concealed carry course. Restricting business this way doesn’t sound very…. Republican.

Last January Governor Asa Hutchinson bragged on there being 70 instructors qualified to teach the enhanced course.  It was nothing to brag about.  There had been about 1,000 instructors before the new restriction. Many instructors decided if they had to teach the enhanced mess they would get out of the business.

Legislators embarrassed by the publicity from making it harder for people to find an instructor tried to get the Governor to include legislation to remove the restriction when he called a special session last March. Adding the issue to the special session would not have made the session any longer. But the Governor refused to include it. His spokesperson said the Governor preferred to handle the issue through rule-making.

Handgun instructors breathed a sigh of relief when the Governor directed the Arkansas State Police to delay compliance. But the Governor’s solution put the State Police in a bad position… a position of ignoring the direct words of the law.

Regulatory power can only be exercised within the limits of the law. The enhanced carry law does not grant the State Police authority to waive provisions set by law. Their regulations must comply with the law… not change it.

Citing a statute that says an agency can promulgate regulations is not enough.  The agency regulation must be based on substantive law which grants authority for the particular subject matter.

There is nothing in the enhanced carry law authorizing the State Police to ignore the direct requirements of the law.

The Governor should have fixed the problem in March by allowing the legislature to remove the restriction, instead of usurping legislative power and putting the State Police in an awkward position.

If the legislature fails to correct the problem in January, be prepared for the Governor’s edict to expire and the course requirement to be imposed. Such an outcome would be a victory for gun control advocates because it would make it more difficult for Arkansans to find handgun training. The drastic reduction in instructors would impact not only those who want a concealed carry license. Worse a loss of instructors would negatively impact Arkansans who want training but who do not want a license because they intend to exercise constitutional carry (carrying openly or concealed without a license). And the number of Arkansans who want training without seeking a license will likely increase now that the Arkansas Court of Appeals has acknowledged what gun rights activists have been telling the politicians for almost six years – that carrying a handgun is NOT an offense unless the person has the intent to unlawfully employ the handgun as a weapon against another person.

Do you recall this statement?

“We are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help that they need. I’ve got a pen, and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward …” – President Barack Obama

How is former President Obama’s statement different from what happened in Arkansas?

Do you want Arkansas to be run by an Obama style pen and phone while ignoring laws passed by the legislature? Arkansas deserves better. The Arkansas Constitution demands better.

Article 4. Departments

1. Departments of government.
The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.

2. Separation of departments.
No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Don’t accept an Obama style government in Arkansas – it’s against our Constitution.