Kentucky’s Proposed Hunting Amendment – A Solution In Search Of A Problem Posted: November 2, 2012
On the ballot next week is a proposed constitutional amendment question, asking the voters “Are you in favor of amending the Kentucky constitution to state that the citizens of Kentucky have the personal right to hunt, fish, and harvest wildlife, subject to laws and regulations that promote conservation and preserve the future of hunting and fishing, and to state that public hunting and fishing shall be a preferred means of managing and controlling wildlife?”
The question is a poor paraphrasing of the actual amendment language, which if adopted, will provide that:
"The citizens of Kentucky have the personal right to hunt, fish, and harvest wildlife, using traditional methods, subject only to statutes enacted by the Legislature, and to administrative regulations adopted by the designated state agency to promote wildlife conservation and management and to preserve the future of hunting and fishing. Public hunting and fishing shall be a preferred means of managing and controlling wildlife. This section shall not be construed to modify any provision of law relating to trespass, property rights, or the regulation of commercial activities."
A comma was added after “the Legislature” by a Senate Committee in response to testimony from the Kentucky Resources Council expressing concern that the measure would undercut the authority of state and local governments to legislate in areas such as public safety that might have the effect of limiting hunting or fishing. The initial language would have limited the power of the General Assembly to regulate hunting to state statutes that “promote wildlife conservation and management,” and would have eliminated existing concurrent local regulation under home rule laws, so that restrictions on possession or discharge of firearms intended to protect public safety within cities and outside them would be at risk. Such laws would be beyond the scope of the local government and even the legislature’s authority since those restrictions don’t promote wildlife conservation and management, but are instead directed at keeping people from inadvertently hurting other people. This concern was underscored by the savings clause, which preserves only laws relating to trespass and property rights, but not public health and safety.
With the addition of a comma, the “personal right” to hunt, fish, and harvest wildlife remains subject to all laws enacted by the General Assembly, including presumably those laws recognizing home rule powers for city and county governments. Since that is the case, the question is why is this measure on the ballot? Either the amendment does nothing, in which case it is not needed, or it does something and we do not yet know what it is. Since amendments to constitutions are presumed to be intended to change existing law, what exactly is the change intended to be effected? If we are not sure of the answer to that question, how can we vote for it?
The reality is that the enactment of some form of this constitutional amendment is a national priority for the National Rifle Association, which according to their website views this as a Second Amendment-related issue. But in a Commonwealth where most of the lands available for hunting are privately owned, the creation of a “right” to hunt is generally ineffective since the landowner permission must still be obtained. For public lands, the General Assembly already controls when and where hunting, fishing, and other “harvesting” of wildlife can occur, and the amendment has no effect on their ability to do so in the future.
During the same legislative session, the House and Senate considered and passed a concurrent resolution that had been titled the Kentucky Children’s Outdoor Bill of Rights. While the language was weakened to an “expression of the sentiment of the General Assembly,” the resolution recognized the importance of a wide range of outdoor experiences for healthy children, encouraging kids to “fish, swim, paddle, ski, wade, splash, or otherwise enjoy a Kentucky stream, creek, river, or lake; hike, hunt, bird watch, view elk and other wildlife, and explore Kentucky's natural wilderness areas, parks, trails, woods, natural habitats, farms, and agritourism establishments[.]”
A constitutional amendment that would assure adequate funding for establishment of natural areas and parks, and for protection of Kentucky’s land and water for a wide range of outdoor activities? Now that would be an amendment worth voting for.