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Monday, September 7, 2009

Five Recent Stories Illustrating “The Constitution in our Midst” (the third in our series)

"The People Shall Have the Right to Hunt and Fish..."

Urged on by the National Rifle Association and other Conservative Groups, State Legislatures are Passing Constitutional Amendments to Protect Sportsmen from “Overzealous” Environmentalists

Alabama was the first. In 1996, it amended its state constitution to include a right to hunt and fish. The measure had to be put on the ballot that year, but its passage was never in doubt; voters approved by an 81 percent to 19 percent margin. Then other states followed. Louisiana. Minnesota. Montana. North Dakota. Virginia. Georgia. Most recently, in 2008, Oklahoma passed a constitutional amendment guaranteeing the right to “hunt, trap, fish, and take game.” In all, ten states now have such constitutional provisions. Another, Arkansas, will vote on a similar measure amending its constitution in 2010.

In fact, the state with the oldest constitutional language protecting sportsmen — Vermont — did so back in 1777, as a way of guarding the common fisherman from the medieval policy of “the king’s deer”; that is, the notion that hunting should be reserved for the privileged and that the hunters’ kill belonged exclusively to the monarch (think of all those scenes of Robin Hood and his merry men dining on venison that they had poached from the king and you get the idea why that was so brazen an act for their times.)

But this newest trend is different, of course. According to the National Rifle Association, the continued interest in making hunting a right in the 21st Century is thanks to a thoroughly modern “problem”: Efforts by "anti-hunting" groups like the Humane Society of the United States and People for the Ethical Treatment of Animals, or PETA, who the NRA insists would rather ban the sport altogether. (Those groups almost uniformly dispute the NRA’s claims as scaremongering; asserting, instead, that their campaigns are for regulating sporting activities to eliminate “inhumane practices,” not banning gun sports altogether). Urged on by their success, the NRA is now lobbying several other states in the South and Midwest to follow suit.

This recent push to consider constitutional protection for hunting and fishing, though, goes beyond such measures. In Florida, commercial fishermen turned to the Fourth Amendment to the US Constitution to protect them from a new federal requirement that required their boats to be equipped with electronic location devices as they worked the waters of the Gulf of Mexico. The devices are meant to tell National Marine Fisheries Service officials when fishing boats penetrate areas closed for reef fishing. But in a 2006 suit filed in federal court against the NMFS, the Gulf Fishermen's Association contended that the use of these devices violated the U.S. Constitution’s Fourth Amendment protections against unreasonable searches and seizures. (You can read their complaint here). In late 2008, the suit was settled out of court when the fishermen began to see that the advantages of the new technology (“instant communications from vessel to home, secure vessel to vessel communications, tracking your own vessel or vessels, proving the [the Gulf fishing industry] can be accountable,” thereby thwarting further regulation) outweighed their concerns about an invasion of privacy. Nonetheless, the issue highlighted a suspicion of federal intrusion that is quick to be excited.

Yet another development that has led to fishermen squaring off against the federal government involves the government’s attempts to create a national fishing registry. Beginning in 2010, the federal government will require all states to control fishing activities through licensing programs, whether that fishing is being done from a commercial or private a boat or even from a lonesome cove along the shore. And this includes sport fishing as well. The authorities says it is to better govern the waters, but there are plenty of people crying foul.

Mind you, states have required fishing licenses on at least a limited basis for many years now, but the odd angler tossing a line to get his night’s dinner has long been seen by people as a protected breed. No more. The goal is to create a national registry in order to monitor fishing activity.

Finally, there is the second amendment ‘incorporation question.” The second amendment, which protects a “right to bear arms” became the subject of great controversy (not that has ever not been) when in 2008 the Supreme Court, in DC v Heller, discovered a private right protected by the second amendment. That is, the Court, for the first time, interpreted the second amendment as not only protecting a collective right to gun ownership (as in the case of militias), but a right for an individual to own a firearm for private use.

That raises an interesting issue, one that the Supreme Court may have to address very soon. The Heller case read the second amendment as applying only as a ban on the federal government and federally-administered entities like the District of Columbia. But gradually, over the last few decades, the Supreme Court has begun to read the Bill of Rights as providing a restriction on all government activity, not just the federal government. This is known as the “incorporation doctrine” and the Court has so far been selective in its determination as to which of the freedoms guaranteed in the Bill of Rights apply to the states. The first amendment, for instance, has been incorporated and so have the fourth and most of the fifth but not the seventh amendment guarantee of a jury trial for civil cases.

Now, since Heller, the circuit courts have considered several cases in which the incorporation of the second amendment is at issue. In the Ninth Circuit, the court ruled that the second amendment does indeed apply to the states (though the case is now scheduled to be re-heard there), but in the Second and Seventh, it ruled the opposite. Whenever there is a so-called “circuit-split,” the Supreme Court is more likely to grant certiorari. Look to the Court to consider this issue very soon.


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