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Editorial - Free to Hunt

By David Devereaux


Written by: David Devereaux, Political Activist, Founder of the Equal Protection Institute, and avid outdoorsman.

Hunting, fishing and trapping should be constitutionally protected rights in America. It is irrefutable that they are intricately tied to human culture and are crucial elements of America's history and economy. Critics of hunting and fishing would have us believe that these activities are unnecessary and even cruel. These misconceptions are neither true nor constitutional. Despite this undeniable history, hunters only comprise a small percentage of America's population. It is precisely these types of minority classes that the constitution, particularly the 14th amendment, was intended to protect.

There is an alarming trend in America. There has always been a divide between urban and rural cultures, but the divide is widening and threatening to consume less represented, but no less important, rural traditions and activities. Nowhere is this divide more evident than efforts to restrict hunting and fishing in The United States. These relentless attacks are being organized and funded by urban political organizations intent on extinguishing critical elements of rural America. One step and one restriction at a time. This is the opposition's explicitly stated strategy. If these organizations could end all hunting and fishing at once, they would. Indeed, Wayne Pacelle, the current CEO of the Humane Society of the United States, clearly stated in the Associated Press on December 30, 1991, "If we could shut down all sport hunting in a moment, we would."

In addition to threatening the inherent values and traditions of rural culture in America, laws targeting hunting and fishing also violate the Equal Protection guarantees of the 14th amendment. The 14th Amendment requires that all individuals and classes in society be afforded equal access to the protections of the laws of the land. Specifically, it was directed at state governments and legislators to ensure that no state would arbitrarily discriminate or deny equal protection of the laws. The Supreme Court has said that the Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike."

In terms of hunting and fishing, the decision-making calculus is simple. If other (arguably egregious) forms of animal harvest are legally protected based on tradition and economic value, then laws targeting hunting and fishing are unreasonable violations of the Equal Protection Clause. Importantly, this is true even when applying a rational basis test; the least restrictive form of judicial scrutiny, because the government’s action is considered overtly unfair and arbitrary.

Commercial animal slaughter, legally protected in America, demands the same protections be extended to hunting and fishing. Billions of animals are commercially harvested and consumed every year in the United States. Animal harvest, although regulated, is legally protected and accepted by the legislature and the courts. For example, The Humane Slaughter Act of 1958 defines the legally protected methods of commercial slaughter. As long as the methods are humane then slaughter is legally protected. Utilizing this same criteria, hunting and fishing should, without question,receive these same protections. The well documented living conditions of commercially slaughtered animals reveal an undeniable and un-debatable truth: animals that are hunted have a comparatively higher quality of life. Moreover, "right-to-farm" laws found in most states also extend protection to the commercial animal slaughter industry. The Legislative policies set out in statute find that farming practices are critical to the economic welfare of the state, and that it is in the interest of the continued welfare of the state for farming practices to be protected from legal actions that may be intended to limit such practices. It is irrefutable that hunting and fishing are also substantial contributors to America's economy. The total economic impact of hunting in America amounts to tens of billions of dollars annually. According to The Economic Importance of Hunting in America, a report provided by the Animal Use Issues Committee of the International Association of Fish and Wildlife Agencies, "Together, hunters and anglers may very well be the most important source of conservation funding in the United States."

The 14th Amendment requires that hunting and fishing be given the same protections commercial animal slaughter receives because there is no meaningful legal distinction between the two similarly situated methods of animal use and harvest. In fact, the only meaningful differences between the two are stereotype and method, which are not justifications to deny equal access and protection of the law. A constitutional amendment is the best mechanism available to protect hunting and fishing in America. According to the National Conference of State Legislators, many policymakers in America are beginning to recognize and understand that the divide between urban and rural societies requires constitutional action. In fact, 17 states have taken the steps to provide constitutional protections for hunting, fishing and trapping as an explicit response to urban political misconceptions and misrepresentations that threaten an industry and culture engrained in human society since its inception. Constitutional protection would ensure that these activities would be guaranteed.

 The specifically articulated constitutional protections at issue would create a legal bright line clearly defining the powers of the government relating to hunting and fishing into the future. Issues involving hunting and fishing would receive strict scrutiny review because hunting and fishing would be considered fundamental rights requiring much more stringent analysis. The burden of proof legally shifts requiring the state to demonstrate more than just a rational basis for its action. The state would have to demonstrate a clearly articulated legitimate state interest and prove that the proposed policy was the least restrictive means to achieve its legitimate purpose.

Any restraints on the fundamental right to hunt and fish would be limited to policies that, in form and substance, are truly intended to promote sound wildlife conservation and management. Constitutional protection elevates hunting and fishing to the status of enumerated and fundamental liberty. Any policy motivated by something other than sound wildlife management and conservation would be considered a violation of the substantive due process guarantees of the 14th Amendment in addition to directly violating any amendment explicitly protecting hunting and fishing. The state's right to govern hunting and fishing standards and its natural resources would still be intact, so the oppositions fears of unsound hunting and fishing practices are completely unfounded. Constitutional protection would merely take any policy motivated by baseline moral and/or ethical objections to hunting and fishing off the table.

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