I
right to hunt amendments recently adopted; general contents;
response to legislative successes, changing values, declining
numbers; attempt to preserve increasingly unpopular privilege,
insulate it from regulation by public in the public interest;
possible implications in some states
II
summary of amendments since vermont; specific contents,
including lethal wildlife management
III
reasons and motivations of proponents; ‘tradition’; changes in
purpose and nature of hunting; caricatures of animal rights
activists/groups; notorious groups involved
IV
provisions for regulation by state authorities; constitutional
implications; public policy and democratic implications
V
no threat of hunting ban; trivializes constitutions, e.g., knitting
and golf; constitutionalization as pathetic; hunters cannot
change public opinion rationally—no justification of recreational
hunting
In this year’s midterm elections in the U.S., voters in four states—
Arizona, Arkansas, South Carolina, and Tennessee—considered
referenda that would amend their state constitutions to recognize a
right of residents to hunt and trap wild animals. Although the Arizona
initiative, Proposition 109, was narrowly defeated, the others passed
by large margins. The votes brought to 14 the number of states* that
have incorporated such “right to hunt” provisions into their
constitutions; all but one of them were adopted since 1996. (The
framers of Vermont’s constitution [1777], resentful of British colonial
laws that restricted hunting to the upper classes, declared the liberty
of inhabitants to “hunt and fowl on the lands they hold, and other
lands not inclosed, and in like manner to fish in all boatable and other
waters [not private property].” A similar provision in the Pennsylvania
constitution of 1776 was stricken as unnecessary in 1790.) Two other
state constitutions, those of California and Rhode Island, recognize a
right to fish but not a right to hunt.
The amendments adopted since 1996 were inspired mainly by fears
among pro-hunting groups that the growing animal rights movement
in the United States would create significant political support for
“unreasonable” restrictions on hunting and fishing, leading eventually
to outright bans in some jurisdictions. Although many animal-rights
sympathizers and even some hunters dismissed the measures as
empty symbolism (because there is no serious political threat to
hunting in any state) or trivial constitutional clutter, others worried
that they could be used to challenge existing hunting laws and
regulations, including endangered-species protections, or undermine
wildlife and habitat management by state authorities. A graver concern
is that enshrining these pastimes in state constitutions (which are
considerably easier to amend than the federal constitution) will
prevent state legislative and regulatory authorities from making
wildlife policy in the public interest, rather than in the interest of
hunters.
Content
The content and even the language of the amendments adopted since
1996 are strikingly similar. Several of the amendments, including
Alabama’s “Sportsperson’s Bill of Rights”, specify that the right to hunt
and fish is subject to regulation or restriction by law. … [‘reasonable’]
[mention that more recent amendments based on language of NRA
model, see
http://www.nraila.org/Issues/Articles/Read.aspx?id=324&issue=021]
Alabama
Sportsperson's Bill of Rights.
(a) All persons shall have the right to hunt and fish in this state in accordance
with law and regulations.
(b) This amendment shall be known as the "Sportsperson's Bill of Rights."
Arkansas
SECTION 1. (a)(1) Citizens of the state of Arkansas have a right to
35 hunt, fish, trap, and harvest wildlife.
36 (2) The right to hunt, fish, trap, and harvest wildlife shall be As
Engrossed: S2/10/09 S2/12/09 S3/12/09 S3/23/09 SJR3
2 03-23-2009 08:28 MBM076
1 subject only to regulations that promote sound wildlife conservation
and
2 management and are consistent with Amendment 35 of the
Arkansas Constitution.
3 (b) Public hunting, fishing, and trapping shall be a preferred means
4 of managing and controlling nonthreatened species and citizens may
use
5 traditional methods for harvesting wildlife.
6 (c) Nothing in this amendment shall be construed to alter, repeal,
or
7 modify:
8 (1) Any provision of Amendment 35 to the Arkansas Constitution;
9 (2) Any common law or statute relating to trespass, private
10 property rights, eminent domain, public ownership of property, or
any law
11 concerning firearms unrelated to hunting; or
12 (3) The sovereign immunity of the State of Arkansas.
The amendments of the Georgia, Minnesota, and North Dakota
constitutions impose a duty on state legislatures and regulatory
authorities to manage wildlife for the express purpose of preserving
subject to “law and regulation” or to “regulation or restriction by law”
or to
As Jeffry Urmson notes in a 2009 article published in the Tennessee
Law Review (“The Game is Afoot: Constitutionalizing the Right to Hunt
and Fish in the Tennessee Constitution”), the Alabama amendment
(called the “Sportsperson’s Bill of Rights”) as well as the Virginia
amendment specify that the right to hunt and fish shall be subject to
“law and regulation”
*The states are: Alabama (1996), Arkansas (2010), Georgia (2006),
Louisiana (2004), Minnesota (1998), Montana (2004), North Dakota
(2000), Oklahoma (2008), South Carolina (2010), Tennessee (2010),
Vermont (1777), Virginia (2000), and Wisconsin (2003).
public acceptance of their recreation was dwindling , the growing
animal rights movement would drastically reduce public support for
hunting and lead eventually to “unreasonable” restrictions on
growing support for the animal rights movement in the United States
would create political support for “unreasonable” restrictions on
hunting and eventually for a complete ban on hunting of any kind
throughout the country.
Americans’ growing sensitivity to the cruel treatment of animals in
factory farms and laboratories would eventually lead
conceived by their framers as protection against the possibility that a
future state legislature or regulatory agency will impose unreasonable
restrictions on hunting or, in a worst-case scenario, ban hunting
altogether.
In this year’s midterm elections in the United States, voters in four
states—Arizona, Arkansas, South Carolina, and Tennessee—considered
referenda that would amend their state constitutions to recognize a
right to hunt, fish, and trap wild animals. Although the Arizona
initiative, Proposition 109, was narrowly defeated, those in the other
states passed by large margins.
In this year’s midterm elections in the U.S., voters in four states—
Arizona, Arkansas, South Carolina, and Tennessee—considered
referenda that would amend their state constitutions to recognize a
constitutional right to hunt, fish, and trap wild animals. Although the
Arizona initiative, Proposition 109, was narrowly defeated, the others
passed by large margins. The votes brought to 15 the number of
states that have adopted such “right to hunt” amendments to their
constitutions; all but one of them were passed in referenda held since
1996. (Vermont’s constitution, adopted in 1777, contains adopted a
right to hunt amendment in 1777 in response to British colonial laws
that restricted hunting to
approved amendments to their state constitutions that conferred a
constitutional right to hunt, fish, and trap wild animals.
Right to hunt amendments/laws
Hunter harassment laws
Changing attitudes, values re hunting and guns
Numbers of hunters/fishers declined steadily from 1975
Prompts or is prompted by attempts to justify recreational hunting—
none is succesful (?)
Amendments pushed by NRA
Political climate—fear of obama/liberals provokes gun nuts
Tradition/heritage/it’s always been done this way
Note contrast between traditional hunting for food or fur and
contemporary hunting for pleasure
Traditional means also protected; hunting subject only to “reasonable”
restrictions
Would this make unconstitutional laws prohibiting steel traps, etc.?
Some require hunting to be preferred method of wildlife management
Seven state constitutions assert that the right to keep and bear arms
exists to allow hunting, among other purposes
No one thinks that hunting is likely to become illegal in any state
Regulations upheld as reasonable include those pertaining to licensing,
hunting seasons, numerical limits
Such rights may create duties of the legislature or regulatory bodies to
regulate/manage/conserve etc. wildlife for continued hunting
May indirectly create right to keep and bear arms in states without
that express right
Framers of amendments intend “reasonable” to be interpreted against
the goal of preserving hunting and fishing—traditional means cannot
be banned unless necessary to preserve wildlife for the purpose of
hunting
Some require state officers to act so as to preserve hunting and fishing
Could affect the interpretation of statutes in cases where more than
one interpretation is reasonable and one poses constitutional
conflicts—e.g., rural development, wildlife programs (?)
Constitutional populism as a means of institutionalizing social policies,
taking them out of the realm of decision making by legislatures and
government officials—a means of insuring victory of one side in social
issues of the culture wars
All this possible because state contitutions are more easily amended
than the federal constitution
Constitutionalizes the moral values of a majority, or the view that
hunting and fishing are inherently morally permissible and that
restrictions are morally suspect
Does cultural importance justify constitutionalization? E.g., football.
Culture/tradition line partly undermined by the fact that hunting is now
overwhelmingly recreational rather than subsistence
Cf. also changing demographics: numbers of hunters/supporters
steadily declining with urbanization, education, shift in values
Motivations: public views of hunting changing, more people are
indifferent or see it as cruel; number of hunters declining; adoption of
laws/regulations in some states prohibiting cruel hunting practices or
restricting hunting by species, means (e.g., trapping), numbers killed;
proponents fear that ‘traditional’ means of hunting will be banned or
restricted (by legislatures or agencies) as cruel or that the hunting of
some animals will be banned or that hunting itself will be banned
Could bans on dove hunting be overturned?
Hunting is in no danger of being banned in any state; even ardent
supporters acknowledge this
“The moves come against a backdrop of pressure from proponents of animal rights. From trying to halt the
mourning dove hunt in Wisconsin, to limiting Sunday hunting, to trying to stop the "culling" of heavy deer
populations at Devil's Den Nature Preserve in Connecticut, animal-rights activists have been filing lawsuits and
proposing laws that hunters say are limiting their freedom to hunt.”
These amendments, they say, burden vital state documents with superfluous provisions. What's more, they say
hunters are using constitutions to forestall future debate on issues that deserve to remain in the public forum.
http://www.csmonitor.com/2002/0403/p01s04-ussc.html
"When you have something protected in your constitution, then it is very difficult to use the courts or other types of ballot activities to thwart,
for example, hunting and fishing," said Steve Faris, a Democratic Arkansas state senator and the bill's lead sponsor there.
"They start with cats and dogs and the next thing you know, someone says it's inhumane to shoot a deer. It's like buying an insurance
policy."
http://abcnews.go.com/US/wireStory?id=11880143
NRA's model Right to Hunt and Fish constitutional language, developed over the past five years, has become the standard from which to negotiate
with legislators and game and fish professionals. Thirteen states now have these important constitutional
protections: Alabama, Arkansas, Georgia, Louisiana,Minnesota, Montana, North Dakota, Oklahoma, South
Carolina, Tennessee, Vermont, Virginia andWisconsin.