AR-Constitution: Proposed Amendment 1, Arkansas Hunting Rights Amendment (2010)

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    [Author’s Note: I started writing this last night (Monday) and planned to finish it early today, but my internet connection had other ideas.  Great timing for that, huh?]

    There seems to be a bit of confusion surrounding proposed amendment 1. The most common argument against this amendment that I’ve heard is the one echoed by John Brummett: “Against, of course, because we already have a wholly unthreatened right to hunt and fish and it is always ill-advised to clutter our state constitution with unnecessary powers.”

    Brummett is wrong: You don’t have a right to hunt any more than you have a right to drive a car. Sure, there is a constitutionally guaranteed right to travel on public roads (see, e.g., Kent v. Dulles, 357 U.S. 116 (1958) (“The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment.”)), but if you wish to travel by driving a car, you have to apply for the privilege, pay a fee, and take a test.  Easy to follow short-hand rule: if you have to take a test to do something, it’s a pretty safe guess that you do not have a constitutionally guaranteed right to do it.

    Contrast this with, say, voting, which is a constitutionally guaranteed right for people who meet certain constitutionally mandated criteria (age, residency, etc.).  Yes, this right can be forfeited, as is the case in many states for people who have been convicted of a felony, but no pre-conditions outside the mandated criteria may be imposed.  See Oregon v. Mitchell, 400 U.S. 112 (1970); see also Harper v. Virginia Board of Elections, 383 U.S. 633 (1966).  This is why, for example, poll taxes and literacy tests have been found unconstitutional.  Criteria can be changed and the right in question extended or retracted from certain groups, but this must be done through a Constitutional amendment such as the 26th, which lowered the voting age to 18.

    Based on all of this, the status of hunting is pretty clear.  When you get a hunting license, the state of Arkansas is granting you the privilege of hunting, subject to the property rights of others. Even if you are on public land, you only have the right to be on that land; you cannot hunt on that land without being granted the privilege of a hunting license.  (All of this applies vis-a-vis fishing as well, of course.)

    So, why does this matter?  Well, it might not; it may be nothing more than someone pushing an amendment to solve a problem that doesn’t exist.  I have a theory, however, on how it could wind up being a big deal should it pass.

    The summary of proposed amendment 1 reads:

    This resolution proposes to amend the Arkansas Constitution to provide for a constitutional right for citizens of the state of Arkansas to hunt, fish, trap, and harvest wildlife. The resolution states that the right would be limited only by the regulations consistent with Amendment 35 of the Arkansas Constitution.

    Amendment 35, as you know if you’ve been following the Game & Fish FOI stuff in the paper, governs the creation and powers of the G&F Commission.  As is relevant to this discussion, that amendment reads (with all non-title emphases mine):

    § 1. Commission created — Members — Powers.

    The control, management, restoration, conservation and regulation of birds, fish, game and wildlife resources of the State, including hatcheries, sanctuaries, refuges, reservations and all property now owned, or used for said purposes and the acquisition and establishment of same, the administration of the laws now and/or hereafter pertaining thereto, shall be vested in a Commission to be known as the Arkansas State Game and Fish Commission, to consist of eight members. Seven of whom shall be active and one an associate member who shall be the Head of the Department of Zoology at the University of Arkansas, without voting power.

    [***]

    § 8. [***] Funds — Use –Purposes — Game Protection Fund — Audit of accounts — Resident hunting and fishing licenses — Powers of commission.

    [***]

    The fees, monies, or funds arising from all sources by the operation and transaction of the said Commission and from the application and administration of the laws and regulations pertaining to birds, game, fish and wildlife resources of the State and the sale of property used for said purposes shall be expended by the Commission for the control, management, restoration, conservation and regulation of the birds, fish and wildlife resources of the State, including the purchases or other acquisitions of property for said purposes and for the administration of the laws pertaining thereto and for no other purposes. All monies shall be deposited in the Game Protection Fund with the State Treasurer and such monies as are necessary, including an emergency fund, shall be appropriated by the Legislature at each legislative session for the use of the Game and Fish Commission as hereto set forth. No monies other than those credited to the Game Protection Fund can be appropriated.

    All money to the credit of or that should be credited to the present Game Protection Fund shall be credited to the new Game Protection Fund and any appropriation made by the Legislature out of the Game Protection Fund shall be construed to be for the use of the new Commission and out of the new Game Protection Fund.

    The books, accounts and financial affairs of the Commission shall be audited by the State Comptroller as that department deems necessary, but at least once a year.

    Resident hunting and fishing license, each, shall be One and 50/100 Dollars annually, and shall not exceed this amount unless a higher license fee is authorized by an Act of Legislature.

    The Commission shall have the exclusive power and authority to issue licenses and permits, to regulate bag limits and the manner of taking game and fish and furbearing animals, and shall have the authority to divide the State into zones, and regulate seasons and manner of taking game, and fish and furbearing animals therein, and fix penalties for violations. No rule or regulations shall apply to less than a complete zone, except temporarily in case of extreme emergency.

    [***]The Commission shall be empowered to spend such monies as are necessary to match Federal grants under the Pittman-Robertson or similar acts for the propagation, conservation and restoration of game and fish.

    [***]

    Not surprisingly, the revenue from hunting and fishing licenses makes up a great deal of G&F’s funding.  (Prior to Amendment 75, passed in 1996, which levied a 1/8 cent sales tax for conservation and of which G&F receives about $25 million per year, licenses fees were more or less all of the money G&F had.)  The reason I think Proposed Amendment 1 could be a big deal is because, should it pass and establish a right to hunt and fish, an argument could then be made that the state (via AG&FC) should not be able to charge for that right.  If so, they would remove some chunk of funding from the fiefdom of Game & Fish.

    Do I know that such a plan was behind this proposed amendment?  Of course not.  Like I said above, this is just my theory on the whole thing.  However, because I see it as a possibility and because I think any measure that might remove some of G&F’s autonomy is probably a good thing, I am voting in favor of this proposal.