SJR 2: Opening the Door to Legal Battles

Deer peekingSJR 2 would create a constitutional right to “hunt, fish, and harvest game”. This resolution passed through the General Assembly the last two sessions, so the question whether to adopt this constitutional amendment will go before the public during the 2016 general election.

The reasons to oppose this legislation are numerous. Foremost, the right to hunt and fish is already protected under the public trust doctrine so SJR 2 would only be reaffirming an existing law but with the possibility of unintended and worrisome consequences. Additionally, constitutionally protected rights are extremely hard to regulate and while SJR 2 includes language that appears to protect existing regulations, it does not. To regulate constitutionally-protected rights, the government must prove that existing laws do not place a material burden on the newly-created constitutional right. Therefore, existing regulations would be subject to a constitutional challenge and new regulations will be harder to defend if challenged.

Of further concern is the possibility that this new right could result in challenges to property rights by those seeking to open private lands to hunting and fishing, or encourage violations of season and bag limits for fish and wildlife, and embolden poachers and those who trade in endangered species if violators believe courts will be reluctant to uphold fish and wildlife laws and regulations.