Senator Faulk, a co-sponsor of resolution to recognize rights of citizens to hunt and fish, encourages voters to approve proposed constitutional amend

State Senate
State of Tennessee


(NASHVILLE, TN), October 11, 2010 – Tennesseans will have a rare opportunity in the upcoming fall elections to preserve our state’s great hunting and fishing heritage so that it can be enjoyed by future generations of Tennesseans. If passed, the Constitution will say: “The citizens of this state shall have the personal right to hunt and fish, subject to reasonable regulations and restrictions prescribed by law. The recognition of this right does not abrogate any private or public property rights, nor does it limit the state s power to regulate commercial activity. Traditional manners and means may be used to take non-threatened species.”

“Like many Tennessee sportsmen, it is hard to curb my enthusiasm for this time-honored tradition. A couple of decades ago, we would not even be thinking about the need to place the right to hunt and fish in our state’s Constitution. However, we continue to see the growing strength of groups that use both the political arena and the courts to advance their anti-hunting and anti-fishing agenda, showing the need to adopt such a preventative measure as the proposed constitutional amendment,” Faulk said.

Inclusion of a right to hunt and fish in the U. S. Constitution was considered, but not added to that document or the Bill of Rights even though it did make it into several state constitutions.

The language in the proposed amendment to Tennessee's Constitution would give sportsmen a stronger voice in court on any future action that would deny their right to hunt and fish. It will also provide significant protection from misguided lawsuits that does not exist today. In addition, any efforts to remove these rights could not be done through legislation; rather, it would have to go through a more difficult constitutional process for removal.

The initiative to be decided on November 2, 2010 is the last of a multi-step process required to place this right into our state’s Constitution. It's not enough that the amendment pass by a majority vote. The number of affirmative votes must exceed half of the number of voters that voted in the gubernatorial election. It is a tedious process, but once the Constitution has been amended, any future effort to ban hunting and fishing would likewise require a multi-year legislative process and a vote of the people to remove the amendment.

As this year’s election approaches, it is important that sportsmen inform their non-hunting family, friends and neighbors that this ballot initiative should not be skipped or overlooked when voting early during this fall’s election. “ We must seize this opportunity to place our right to hunt and fish in Tennessee’s Constitution. Upon approval, this initiative will ensure to the best of our ability, the right of future generations to participate in this time-honored tradition that so many of us enjoy today,” Senator Faulk added.

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Right to Hunt and Fish: Related but Not the Same as the Right to Bear Arms

Tennessee’s Constitution already includes a right to bear arms. Article I, Section 26 says:

“That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.”

But, clearly, this section of the Tennessee Constitution makes no mention of bearing arms for the purpose of hunting.

One of the purposes of the proposed amendment to Tennessee’s Constitution is to make it clear that Tennesseans have a “right” to hunt and fish using firearms. In part, the proposed amendment reads: “Traditional manners and means may be used to take non-threatened species.”

Included within the right to bear arms clause of some state constitutions is the enumerated right to bear arms for the purposed of hunting. A provision guaranteeing the right to hunt and fish has been interpreted in the Minnesota Constitution to mean the right to use arms to do so even those that state does not have a right to bear arms included within its constitution.

The University of Tennessee Law Review article on the proposed amendment for Tennessee’s Constitution is illuminating:

There is an additional category of distinct provisions that appear to confer a right to hunt. Nevertheless, they are not the focus of this article because they are addressed primarily to guaranteeing a state constitutional right to keep and bear arms rather than a constitutional right to hunt or fish.

Seven state constitutions expressly reference that a right to keep and bear arms exists for the purpose, among others, of being able to hunt. Two of those states, North Dakota and Wisconsin, have expressly constitutionalized the right to hunt elsewhere in their state constitution. Five of those states, Delaware, Nebraska, Nevada, New Mexico, and West Virginia, have not.

The North Dakota constitution guarantees that “[a]ll individuals . . . have certain inalienable rights, among which are . . . [the right] to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed.” The Wisconsin constitution declares that “[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.” The Delaware constitution states that “[a] person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.” The Nebraska constitution provides that “[a]ll persons . . . have certain inherent and inalienable rights; among these are . . . the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes.” The Nevada constitution indicates that “[e]very citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.” The New Mexico constitution declares: No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.

Finally, the West Virginia constitution states that “[a] person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.”

The same Minnesota state constitutional provision also may have created a right to keep and bear arms for the purpose of hunting in Minnesota. Six states, one of which is Minnesota, have no constitutional right to bear arms provision in their state constitutions. It has been suggested that the Minnesota hunting rights provision confers an indirect state constitutional right to bear arms for the purposes of hunting."

From Where Does the Notion Come that We have a Right to Hunt and Fish?

To begin to understand the notion, we need to go back to the Late Palaeolithic Age (50 000–10 000 BC) when the human race existed as hunter/gatherers. Scientific studies suggest that physiologically, we were imbued with genes that facilitated the heavy exercise required to hunt and consequently, survive.

The right to hunt and fish was considered by civilized man as a divine right. Under Roman law, wild game belonged to no one until harvested. “[W]ild animals were labeled as res nullius - things capable of individual appropriation, but which belonged to no one until a human took possession by occupatio (the natural method of occupation),” according to Michael C. Blumm & Lucus Ritchi, The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, 35 Envtl. L. 673, 677 (2005).

As populations increased, game resources were no longer limitless, nation/states formed, so the right to hunt and fish was considered as a legal right to be enjoyed by a select portion of the citizenry. The English view had the ownership of wild game belonging to the King. Consequently the taking of such game was the right of the King. One would suspect a part of the natural resentment toward the King found in the colonies can be explained by this view - especially since the new world had abundant and seemingly limitless wildlife.

Inclusion of a right to hunt and fish in the U. S. Constitution was considered but not added to that document or the Bill of Rights. The right to hunt and fish has made it into several state constitutions. An excellent review of hunting and fishing rights in western legal history can be found in the Tennessee Law Review.

The present law of the State of Tennessee concerning the ownership and taking of wildlife is akin to the English view and is codified in Title 70, Chapter Four of Tennessee Code Annotated:

70-4-101. Ownership and title to wildlife vested in the state. — (a) The ownership of and title to all forms of wildlife within the jurisdiction of the state that are not individual property under the laws of the land are hereby declared to be in the state. No wildlife shall be taken or killed in any manner or at any time, except the person or persons so taking or killing the wildlife shall consent that the title to the wildlife shall be and shall remain in the state for the possession, use and transportation of the wildlife after such taking or killing as set forth in this chapter.

(b) The taking or killing of any and all forms of wildlife at any time, in any manner, and by any person, shall be deemed a consent on the part of such person that the title to such wildlife shall be and shall remain in the state for the purpose of regulating the possession, use, sale and transportation of the wildlife for the public welfare.

The language in the proposed amendment to Tennessee's Constitution upon which we may vote on November 2, 2010 will be construed by our Courts one would suspect for years to come. For instance, one may ask this question: “does a constitutional right to hunt and fish include the right to ‘own’ the wildlife so harvested?”

The proposed amendment to Tennessee’s constitution mentions nothing about the “ownership” of wild game but does say: “Traditional manners and means may be used to take non-threatened species.” Reconciling this language and the current section of the Tennessee Code quoted above may be the source of litigation should the amendment pass. I suppose the answer is simply: “we’ll see”. Some court will tell us someday.