Is Hunting a Constitutional Right? Kansas and Indiana Voters Will Decide

Nineteen other states already have measures like this in their state bills of rights.

Nov 7 2016, 1:00pm

Image: USFWS Midwest/Flickr

Hunting and fishing are some of America's oldest traditions—but are they a constitutional right? That's what voters in Kansas and Indiana will decide this election as they consider measures on their ballots that would add hunting to their state constitutions.

They're not the first states to tackle this question: 19 others already have hunting rights in their state constitutions. But while these measures seem superficial, opponents worry they could create serious barriers to wildlife management. Adding the right to the constitution gives hunters more power to dictate what conservation efforts should look like. Though the tension between animal welfare groups and hunters isn't new, these measures raise an important question: who should we trust with deciding how to best preserve our natural resources?

"To me, it's kind of ludicrous," said Midge Grinstead, the Kansas state director for the Humane Society of the United States. "They should have a right to hunt and fish. That is their right. But it doesn't need to be in the constitution."

Grinstead said adding hunting and fishing to the state constitution could make it difficult to address emerging wildlife issues. Although a right to hunt wouldn't trump laws like the Endangered Species Act, Grinstead said she's more concerned about it impeding immediate interventions.

She pointed to lead ammunition as an example. The Kansas Department of Wildlife, Parks, and Tourism has banned lead shots for all migratory game bird hunting except for doves and woodcocks, and lead ammunition is completely banned on certain public lands, because it is toxic and threatens other species. She said if hunting was protected under the constitution, bans like these could be challenged.

Supporters of the amendments say they're a preemptive measure designed to protect a national pastime in the face of increasing pressure from animal welfare and anti-hunting groups. Trevor Santos, the director of government relations and state affairs for the National Shooting Sports Foundation, told me hunters have seen their traditional methods under threat in recent years.

"I have no problem going out and sitting in a duck blind or a deer stand and not even pulling the trigger."

Santos pointed out that hunters and fishers are also conservationists. There are 69.2 million hunters and anglers in the US, according to US Fish and Wildlife Services, and they contribute billions of dollars towards conservation each year through licenses, taxes, and tags. If the habitat is destroyed or animals go extinct, there won't be anything left to hunt, so it makes sense that hunters also have a stake in preserving our natural resources. But Santos told me it goes beyond the kill.

"This not only helps the animals that we hunt, but all other animal species that utilize that same habitat," Santos said. "There's nothing like sitting in a duck blind and watching the sun come up, watching wildlife starting to wake up first thing in the morning. I have no problem going out and sitting in a duck blind or a deer stand and not even pulling the trigger, because it's all a part of the experience."

He said this mindset should assuage any fears that the constitutional right would harm conservation efforts. But, like Grinstead, he also mentioned lead ammunition—as an example of regulation gone too far.

Other states that have passed similar amendments have already seen litigation arise. In Arkansas, a class action lawsuit was filed against the state after the Game and Fish Commission removed permanent duck blinds in certain Wildlife Management Areas. In Tennessee, commercial fishers tried to use the state constitution to fight a ban on catching paddlefish in certain lakes and streams where the population had declined due to overfishing. Ultimately, a judge threw that case out, but it shows the possible conflicts that could arise, and cost the state money to fight.

Whether the changes to the state constitutions would cause headaches for conservationists or not, there's also debate over whether they're necessary. As one Indiana newspaper editorial pointed out: "Like the U.S. Constitution, the Indiana Constitution guarantees the right to 'life, liberty and the pursuit of happiness.' That covers hunting, fishing and a myriad other activities, as long as those pursuits don't infringe upon other rights. [...] No sentient human being can believe that the state of Indiana would actually ban hunting and fishing."

But Santos countered that just because hunting isn't under threat now, doesn't mean it shouldn't be protected.

"While there might not be an immediate threat to hunting in Kansas and Indiana, constitutional protections are put in place with forward-thinking in mind in order to ensure this heritage is protected for future generations," he said. "When the Second Amendment was written there may not have been an imminent threat to owning firearms; however, all one must do is look at the threats to our right to keep and bear arms in today's society."

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