Hunting and the Second Amendment.

• Author: Blocher, Joseph

ABSTRACT

Debates about the meaning and scope of the Second Amendment have traditionally focused on whether it protects the keeping and bearing of arms for self-defense, prevention of tyranny, maintenance of the militia, or some combination of those three things. But roughly half of American gun-owners identify hunting or sport shooting as their primary reason for owning a gun. And while much public rhetoric suggests that these activities fall within the scope of the Second Amendment, some of the most committed gun-rights advocates insist that the Amendment "ain't about hunting" and that, no matter their heritage and value, such activities are constitutionally irrelevant. This Article argues that these advocates are mostly correct, and that hunting and recreational uses of arms have, at best, a tenuous claim to constitutional protection. This conclusion has implications not only for the potential regulation of hunting and shooting sports, but for broader issues such as determining which arms are "in common use" and therefore protected by the Second Amendment. At a more general level, it suggests that an important and influential part of American gun culture--populated by tens of millions of guns and gun owners--is simultaneously protected and regulated without the direct involvement of the Second Amendment.

INTRODUCTION

The Supreme Court's decision in District of Columbia v. Heller affirmed the existence of an "individual" right to keep and bear arms for certain non-militia purposes, (1) and clarified that this right is "not unlimited" and does not "protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose." (2) In the wake of Heller, one of the central difficulties in Second

Amendment law and scholarship is determining which gun-related activities are covered by the right to "keep and bear arms." The private possession of a handgun for self-defense in one's home is generally covered, while the use of a gun to rob a bank is certainly not. (3) Separating these and other types of keeping and bearing has become central to Second Amendment analysis. (4)

And yet very little attention has been given to what traditionally were, and might still be, the most common uses of arms. (5) Hunting and recreational uses like target shooting and "plinking" (6) have long been the primary reasons for gun ownership in the United States. (7) And although self-protection might recently have eclipsed recreation as the most common reason for gun ownership (8)--apparently due both to the increasing ownership of guns for self-defense and the declining popularity of hunting (9)--millions, and perhaps tens of millions, of Americans identify themselves as hunters every year. (10) That number dwarfs even the highest estimates of people who engage in armed self-defense annually. (11) Beyond the numbers, hunting has long had a special cultural salience in the United States, (12) and is especially treasured in rural communities where gun ownership and gun culture are most prevalent. (13)

This Article analyzes the Second Amendment status of hunting and other recreational uses of guns (referred to collectively as "hunting" except where greater specificity seems required) both as a matter of constitutional rhetoric and as a matter of constitutional doctrine. Though the focus is on hunting specifically, the analysis demonstrates a more general point: that to fully measure the Second Amendment's influence on gun regulation, one must consider not only its relatively limited doctrinal impact, (14) but its enormous rhetorical and political power. (15) Constitutional rhetoric has not only dominated the political debate over gun regulation in the United States-sometimes with little connection to the substance of constitutional law--but has shaped that doctrine in fundamentally important ways. (16)

The first Part of this Article therefore begins by analyzing popular constitutional rhetoric regarding the Second Amendment and the use of guns for hunting and recreation. (17) "Gun rights talk" has long played a massive role in defining the scope and stringency of gun regulation in the United States, (18) and its content is usually predictable: gun-rights advocates celebrate the Second Amendment as a matter of law and rhetoric, while gun regulation advocates downplay the Amendment's doctrinal scope and fight its political relevance. When it comes to hunting and recreation, however, the traditional battle lines consistently get crossed in interesting ways. Gun regulation advocates--including many liberal politicians--go to great lengths to establish their bona fides as hunters, (19) swear fealty to hunters' "rights," (20) and carve out protections in firearms laws for sporting weapons. (21) Meanwhile, gun-rights advocates insist that the Second Amendment "ain't about hunting." (22) Chris Cox, Executive Director of the NRA Institute for Legislative Action, represents the position well: "I'm a hunter myself, but the Second Amendment has really nothing to do with hunting." (23)

Rhetorically, then, hunting seems to draw support from those generally regarded as foes of the Second Amendment, while many gun-rights supporters would deny constitutional coverage to their apparent political allies. This puzzle is interesting and important in its own right. And it is especially significant because Second Amendment rhetoric has so much influence over politics and doctrine.

The second Part of the Article turns to the doctrinal arguments. It concludes that gun-rights supporters' rhetoric largely reflects a better reading of law and history--the case for Second Amendment coverage of hunting and recreation is tenuous. There are at least two major arguments in support of hunting's constitutional salience: that hunting is directly included in the meaning of "keep and bear arms," and that it is instrumentally or penumbrally protected as an aid to "core" Second Amendment interests like self-defense. Neither of these arguments yields much fruit.

As a doctrinal matter, the argument for direct coverage of hunting rests largely on Heller's statement that "[t]he prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting." (24) But the Court offered no support for this apparently offhand remark, (25) and there is little evidence that the framers, ratifiers, or general public either intended or believed the Second Amendment to cover hunting. (26) Indeed, even the reaction to the notorious "game laws" was not premised on support for a right to hunt while armed. (27)

Stronger arguments can be made that hunting is constitutionally protected because it is instrumental to the Second Amendment's core values, or falls within its penumbras. (28) For example, armed hunting and recreation might make a person better able to use guns for core Second Amendment purposes like self-defense. Hunting might therefore have some degree of constitutional salience. (29) But as with other constitutional rights, the fact that an activity aids the exercise of a core constitutional right does not necessarily mean that it gets any constitutional protection, (30) let alone the same level as the core right. (31) Accordingly, even if hunting has some functional relationship to the core of the Second Amendment, that might not mean much as a doctrinal or practical matter.

The conclusion that hunting has limited, if any, Second Amendment protection carries with it some significant doctrinal implications for gun regulation targeting hunting, hunters, and hunting weapons. For example, the Supreme Court in Heller concluded that weapons can be banned if they are not "in common use" (32) for lawful purposes like self-defense. (33) Given hunting's tenuous constitutional salience, it is unclear whether hunting weapons should be counted for purposes of this test. And that could be relevant for the constitutional status of AR-15 "assault rifles," whose commonness appears to be based on their use for hunting.

At a more general level, clarifying the relationship between hunting and the Second Amendment may suggest hope for the frequently dispiriting gun debate. This Article aims to show that an enormous amount of gun-related activity falls outside the scope of the Second Amendment. Indeed, gun-rights supporters have long argued as much. And yet even in the Amendment's absence, our basic mechanisms of law and politics seem perfectly capable of both regulating and protecting the recreational use of guns, which account for roughly half of gun ownership. (34) Hunting is subject to regulation, to be sure, (35) but it is also widely permitted. For many involved in the gun debate, this state of affairs--freedom to use guns for certain purposes, modest safety regulations, political assurances, and limited demands on the Second Amendment--is close to an ideal. At the very least, it suggests that the Second Amendment's doctrinal shadow is smaller, and political compromise more feasible, than many or observers or veterans of the debate might suspect.

1. HUNTING AND GUN-RIGHTS TALK

   The Second Amendment has significantly shaped the scope and strength of gun regulation in the United States. But its influence cannot be measured solely by doctrinal tests, nor the number of times it has been successfully invoked in court, because its greatest power is rhetorical--it helps keep gun laws from being passed in the first place. Within that rhetoric, hunting occupies a uniquely fraught position. It is described both as a quintessential, laudable form of arms-bearing and as having nothing at all to do with the Second Amendment. This Part explores and evaluates these two views. For ease of reference, they can be called the "pro-hunting" and "anti-hunting" views, though of course the pro- and...