Meaningless or dangerous? Hunting and fishing constitutional amendment raises huge questions.

by Rob Schofield, NC Policy Watch and NC SPIN panelist, August 16, 2018.

One of the six constitutional amendments slated for the November ballot is a proposalto establish a constitutional right “to use traditional methods, to hunt, fish, and harvest wildlife.” While many critics have derided the proposal as a blatant attempt to spur voter turnout amongst conservative rural voters, substantive criticism of the amendment has been largely muted, with many critics simply arguing that the amendment wouldn’t really change anything.

This maybe an accurate assessment. The full language of the proposed amendment goes on to say that the “right” established by the amendment is “subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing.”

These caveats would appear to place some meaningful limitations on the “right” established by the amendment. After all, if the state will remain free to regulate hunting and fishing, then it’s not immediately evident what will change if voters were to approve the proposal.

That being said, it’s also true that the overwhelming majority of Americans and legal scholars once held similar views of the Second Amendment to the United State Constitution – namely, that the “right” to bear arms was subject to the obvious limitation that Congress and state legislators remained free to enact laws to, among other things, regulate militias and protect public safety.

Unfortunately, of course, this interpretation has been greatly undermined in recent years.

Could the same thing happen with respect to the hunting and fishing amendment? It seems worth noting that the two amendments share many of the same champions, including the National Rifle Association.

The amendment also includes a potentially truck-sized loophole in that any hunting and fishing laws would need to be exclusively for the purpose of promoting wildlife conservation and management and preserving the right to hunt and fish.

What about laws or rules that are enacted in order to protect human life or wellbeing, like a ban on hunting with machine guns or silencers, or burning forests to flush out game, or even hunting in a state park? By a strict reading of the amendment language, such laws could be subject to court challenges by hunting supporters as unconstitutional.

Of course, the obvious preventative remedy to the amendment’s absurd lack of clarity and potential for abuse would and should have been a lengthy, deliberate legislative process that would have provided plenty of time for constitutional experts, scholars, interest groups, regulators, lawmakers of the minority party and the public at-large to weigh in.

Unfortunately, that’s not how the Republican supermajorities in the North Carolina General Assembly rock in 2018. Instead, all six amendments were blasted through both houses in one week with a stunning lack of real analysis or debate and North Carolina now stands on the precipice of enshrining them in its fundamental governing law with no real clear idea of what they mean.

Somewhere, P.T. Barnum is smiling.