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."