Court spells out limits for constitutional right to hunt and fish

The North Carolina Constitution guarantees the right to hunt and fish. But that right has limits.

A recent decision from the state’s second-highest court explained why government restrictions on Sunday hunting comply with the constitution.

Before 2017, North Carolina “prohibited all firearm hunting” on Sundays, according to the state Court of Appeals’ April 16 decision in Oates v. Berger. A Sunday hunting violation could be punished as a Class 3 misdemeanor. That crime carries a maximum penalty of 20 days in jail and a $200 fine.

In July 2017 then-Gov. Roy Cooper signed into law House Bill 559. It relaxed but did not end Sunday hunting restrictions. The law banned hunting during a three-hour window on Sunday mornings and prohibited all hunting within 500 feet of a church. Certain types of hunting remained forbidden.

More than a year later, North Carolina voters endorsed a new state constitutional provision protecting the right to hunt, fish, and harvest wildlife. The measure passed with 57% of the vote and more than 2 million supporters.

Now listed as Article I, Section 38 of the state constitution, the right to hunt and fish “is a valued part of the State’s heritage and shall be forever preserved for the public good.”

In 2020 a plaintiff named Tim Oates filed suit challenging the state’s remaining Sunday hunting restrictions. Among his arguments was the apparent conflict between state law and the two-year-old constitutional provision.

By February 2024 a three-judge Superior Court panel had ruled against Oates. A unanimous three-judge Appeals Court panel upheld that decision this month.

Appellate judges highlighted the proper way to review the Sunday hunting law. Under a more lenient review, the General Assembly needed only a “rational basis” to adopt hunting restrictions. Under a strict review, the law would face a higher hurdle.

“Plaintiff argues that the right to hunt is a fundamental right, and thus deserving of strict scrutiny,” wrote Appeals Court Judge John Arrowood. “However, while the right to hunt has been made explicit in our Constitution, this does not mean that it is a fundamental right for several reasons, chief among them being the reservation of power to the General Assembly contained within the constitutional amendment.”

The people’s right to hunt and fish is “subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly,” according to the constitutional text. Those laws and rules can “promote wildlife conservation and management” and “preserve the future of hunting and fishing.”

Arrowood labeled this language a “grant of power” written into the amendment.

“Thus, although the right to hunt was written into our Constitution, the amendment has all the hallmarks that indicate laws passed under the amendment deserve only rational basis review,” Arrowood explained.

Trial judges found “the statute is reasonably and rationally related to the legitimate government interest contemplated in the text of the amendment under which Plaintiff brings his challenge,” Arrowood wrote.

The original three judges also emphasized Section 38’s “express language that limits the right to hunt by vesting in the State a right and a duty to manage wildlife.”

“The panel further noted that there were additional State obligations to protect the lands and waters to the benefit of both hunters and non-hunters, and discussed ‘several conceivable reasons to restrict hunting’ on Sundays: protecting migratory birds; enabling non-hunters to enjoy scenic game lands without disturbance; and allowing an extended hunting season through compensatory hunting days,” Arrowood wrote.

When lawmakers banned Sunday hunting between 9:30 a.m. and 12:30 p.m., they used their “authority to exercise the police power of the State to protect the people’s welfare,” Arrowood wrote. “The panel determined that this law was ‘a valid exercise of the State’s police power,’ given the benefit to non-hunters, who will have a guaranteed window of time during which they will not be disturbed by hunting, and the extended hunting season in North Carolina.”

The same legislators who relaxed Sunday hunting restrictions in 2017 placed the constitutional amendment on the ballot the following year.

“It is clear from the historical record, then, that our legislature saw no conflict between the amendment and what was left of the Sunday hunting laws, as they chose to pass the amendment and keep the laws in a limited form, rather than entirely discard Sunday hunting laws,” Arrowood wrote.

Oates could ask the North Carolina Supreme Court to review his case. But for now, at least, laws limiting the right to hunt and fish appear likely to withstand state courts’ constitutional review.

Mitch Kokai is senior political analyst for the John Locke Foundation.