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.

TB

Five Recent Stories Illustrating "The Constitution in our Midst" (the second in our series)

You're Hired...But Before Your Start, Could You Give Me a Sample of Your DNA?

You get a new job and your excitement builds as you get closer to that first day of work. A few days before you start, you sit down with your new company's Human Resources department to get all the paperwork squared away. There are the usual requests for documentation: the I-9 form confirms that you are eligible to work in the United States; the withholding form tells the employer how many deductions you will claim. But then comes an unusual question: the HR director asks for a follicle of hair for a DNA study, a urine and feces sample to check for drugs, and schedules you for a bone scan to determine your true age and medical vulnerabilities.

Beginning this November, if the employer used that information in a discriminatory manner, he or she would be in violation of the new federal law known as GINA. The acronym stands for Genetic Information Non-discrimination act. The law will make it illegal for employers to base hiring decisions on genetic information and also makes it illegal for health insurance companies to deny coverage based upon genetic information. But it does not cover life insurance decisions or long-term care insurance decisions.

A recent story in the New York Times described the efforts of major league baseball teams determined to know the true age of Latin American ballplayers recruited to play in the major leagues. Interest in such information has grown as several players, in particular Miguel Tejada (above) of the Astros, admitted that they lied about their ages, wanting to appear to scouts as younger, and full of promise, as opposed to older, and perhaps fully developed. A 2001 study found 300 professional baseball players who had lied about their ages. Because the GINA law is not yet in effect and has not been enforced, it is unclear how it will apply to cases in which American companies conduct DNA tests abroad on citizens of other countries.

Major League baseball insists that DNA testing has been used only in the Dominican Republic “in very rare instances and only on a consensual basis to deal with the identity fraud problem that the league faces in that country.”

While determining age may be the main motivation for baseball’s DNA testing, some watchers wonder whether the DNA results could be used to determine other crucial markers for future performance. Are they likely to succumb to injury? Arthritis? Rare genetic disorders?

Two side notes to this idea:
1) Is such information really that valuable? Mark Rothstein, a professor of bioethics at the University of Louisville School of Medicine, said: “The funny thing about this all is that the most famous baseball player with a genetic disorder was Lou Gehrig. Would they have signed him if they knew he was predisposed to A.L.S.?”

2) Is this the future? A recent study in the British Medical Journal studied 167 healthy volunteers known to be at risk for the inherited illness Huntington's disease and forund them to have suffered significant genetic discrimination.

Five Recent Stories Illustrating “The Constitution In Our Midst” (the first in our series)

Perusing newspapers, magazines and websites, I came across several interesting stories, many of them underreported, describing ways in which the Constitution intersects with ordinary life. Over the next few days, I will be introducing them, one by one.

West Point Cleared of Wrong-Doing In Banning War Protests on Campus; Issue Involves “First Amendment Concerns”

The link below is to an AP story on this subject. It follows an incident in 2004 when protesters unfurled a banner at an Army basketball game and were promptly escorted out of the building and handed a five year ban on appearing on campus. A jury in the federal district court in White Plains, NY ruled this week that the Academy acted within its power. The West Point officials insisted that their ban on the display was not “content-driven” and that, in fact, it was the disruptive nature of the display – not its message – that prompted them to act. Attorney Michael Sussman, of Chester, NY, disagreed, noting that the Academy only adopted a policy banning protests in 2004 after this incident had taken place. He asked the judge to set aside the jury’s decision – which he is allowed to do – and issue a ruling on his own.

NY jury: West Point didn't violate free speech

The case echoes another, also involving attorney Michael Sussman. In 2007, when then-Vice President Dick Cheney was scheduled to appear at West Point graduation ceremonies, Sussman filed a petition on behalf of protesters requesting an injunction to allow them on the grounds to denounce the vice president’s appearance. The district court ruled against them, citing the security concerns voiced by West Point officials as significant and “content neutral.” Appealed to the Second Circuit, the motion was again denied. The judges’ analysis, which you can read here is a careful piece of exposition on First Amendment doctrine.

The essential elements are these: If the Academy – or any military base, for that matter – was a “public forum,” then any speech restriction within its boundaries would be subject to heightened scrutiny. That is, you couldn’t stop the protesters from appearing there. But since the Academy is not a public forum – indeed, at the entrance gates you have to stop, show identification and announce your purpose for being there – restrictions on speech are subject to a lower standard of scrutiny, one in which the rule must only be deemed “reasonable” and “content-neutral.” That is, you cannot allow some protesters who speak one message, while denying other protesters who speak a different one, but with a reasonable argument (such as security of those attending the event) you can ban all of them.

Sussman made the argument that the appearance of Vice President Cheney – by virtue of his being a political figure – changed the tone of the event to something at least resembling a public forum, one where political speech – which has always been deserved the most protection – must by first amendment standards be allowed. But the Second Circuit judges didn’t buy it. They pointed out that Cheney was also an official of the United States government, second only to the Commander-in-Chief, and that the mere fact that he is also a politician does not change the nature of the venue.