“The Constitutional Right to Hunt: New Recognition of an Old Liberty in Virginia
"The Constitutional Right to Hunt: New Recognition of an Old Liberty in Virginia"
The Constitution of Virginia provides: “The people have a right to hunt, fish, and harvest game, subject to such regulations and restrictions as the General Assembly may prescribe by general law.” Currently, eleven States recognize hunting as a constitutional guarantee, and proposed amendments are pending in other States. The oldest, dating back to the American Revolution, sought to guard against royal privilege as practiced in England, while the newest, adopted in recent decades, seek to preempt hunting bans sought by animal-rights activists.
Blackstone described how the Crown banned hunting by commoners in part to keep them disarmed and docile. Hunting as a right of all citizens subject to State regulation has generally been taken for granted in the various States. Following political debate on the subject, Virginians voted to give the right constitutional recognition in the 2000 elections.
As in other States with similar provisions, the courts have established no real jurisprudence about this right. To what extent do the general principles of constitutional interpretation apply to this right, and how is it to be interpreted? While there are no reported decisions in Virginia, a thoughtful Circuit Court decision was rendered in Orion Sporting Group v. Board of Supervisors of Nelson County. This Article draws from that decision and testimony in the trial of that case to ask critical questions about the nature of the constitutional right to hunt.
The Orion Estate was a game preserve dedicated to the hunting of pheasants and other game. It sought to open a sporting clays facility for simulated hunting in which shotgunners would shoot at clay pigeons thrown in bird-like flight patterns. Nelson County refused to permit operation of the facility. That denial was challenged in a lawsuit. The Circuit Court ruled that the constitutional right to hunt only protected the actual hunting of live game together with warmup safety and proficiency shooting of clay pigeons in conjunction with specific hunts, but not the ongoing operation of a sporting clays facility.
Is the operation of a shooting facility protected by the constitutional right to hunt and harvest game? Constitutional rights are normally construed broadly. The separate mention of the “right to hunt” and the right to “harvest game” suggests that hunting may encompass activities broader than the actual pursuit and taking of game.
Does the right to hunt include the right to hunt proficiently, safely, and humanely? Constitutional rights generally encompass both core and auxiliary rights. The public policy of the Commonwealth promotes firearm safety and shooting facilities to train for actual hunting. “Hunting” as defined in the game code creates crimes, such as hunting without a license, and criminal provisions must be narrowly construed, but constitutional rights are broadly construed. If warm-up shooting and safety checks are accessory uses to hunting, must practice shooting be connected to a specific hunt? Or must one learn to hunt by practicing on live game?
Finally, given that regulation of the right is entrusted to the General Assembly, are localities preempted from such regulation? Counties and towns are authorized to regulate hunting only in certain circumstances, such as danger to populated areas. Hunting-related activities may not be prohibited for reasons that are constitutionally impermissible.
Given pressure by animal-rights activists to ban hunting together with restrictions by localities, more States will adopt such constitutional protection and a jurisprudence of the right will develop.
Stephen P. Halbrook. 2010. "“The Constitutional Right to Hunt: New Recognition of an Old Liberty in Virginia" ExpressO
Available at: http://works.bepress.com/stephen_halbrook/3