Do fish and game laws supersede constitutional rights?

[Tjdeerslayer37]

I've debated asking this for a long time but here it goes... This is a discussion we seem to have every year at our deer camp and it pops up throughout the year. The question being, why do fish and game laws seemingly supersede constitutional rights? Or perhaps they don't? I'm hoping to get some discussion points out of this and just spur some conversation in general i suppose. some examples that we have brought up and questioned before-

I live in Michigan so these may be state specific.

-In Michigan, specifically while deer hunting but maybe with other species as well, you have to have your weapon unloaded at the end of shooting time. I have received a written warning for this (I was ignorant of the law) and know of others who have been ticketed for it. My question here is how can it be made illegal to open carry my firearm on public land? Isn't that one covered as my right to bear arms?

-It is my understanding that DNR does not need a warrant to enter your property, or to search your home as long as they have probable cause. I always wondered why DNR is exempt from requiring a warrant. (i think someone introduced a bill to require a warrant recently)

-Recently saw the hunting public episodes about Ted getting a ticket from the state of Mississippi. They stated he was hunting without a license. the scenario as-told was that he was filming for another hunter with no weapon, call or ammunition on him. Yes the rule book says he has to be licensed to accompany the hunter afield, but my question is how is it any different than taking your camera for a walk in the woods? Is that illegal? It's public ground so it seems odd. ps they said this is a $900+ ticket, which seems wild and a bit of a cash grab.

-I'll paint a scenario. You're sitting in your deer blind during rifle season. You just shot your buck and tagged out but it's midday and you don't want to disturb the woods and head back to camp early. You decide to sit back in the same deer blind with your loaded rifle and see if any coyotes come to the smell of your fresh gut pile or whatever, because you have a legal tag for them. Multiple different officers have told me this would be very likely to get you a ticket for deer hunting with no license simply because you're sitting in your deer blind with your deer rifle and you look like you're a deer hunter, regardless of the legal tag in your pocket for coyote. To me, you're a legal hunter, but even at the base of it you're just out in the woods with your weapon and i cant see how that can be made illegal, even if you weren't actively hunting.

Just to be clear, I have nothing but respect for Mr. Green Jeans and the job they do! I realize this may be a polarizing conversation so i hope we can keep it on track and in good spirits and I'd love to hear opinions on it

 

[Dos Perros]

We had a good thread on this a while ago, I'll see if I can find it.

Game laws certainly can't supersede your constitutional rights, but a lot of the game laws are written such that they regulate hunting/fishing activity while protecting your rights. For example, you can't bow hunt while carrying a firearm. It's not that you can't carry a firearm when bowhunting. See the difference?

 

[Tjdeerslayer37]

We had a good thread on this a while ago, I'll see if I can find it.

Game laws certainly can't supersede your constitutional rights, but a lot of the game laws are written such that they regulate hunting/fishing activity while protecting your rights. For example, you can't bow hunt while carrying a firearm. It's not that you can't carry a firearm when bowhunting. See the difference?

Oh, must've missed that one, ill go digging. And That's a good point, hadn't really thought of it that way I spose, all in the wording

 

[fatlander]

Some fish and game laws are spongy in my opinion, and they haven’t been well tested in court in each state.

Here’s an example:

Virginia is a legal open carry state.

It’s also illegal to open carry any weapon that isn’t permitted during that specific season, unless you have a concealed carry permit.

Pretty much anywhere you’re hunting in Virginia, except urban archery, it is legal to shoot varmits year round with any weapon.

That’s seems pretty muddy to me.


Sent from my iPhone using Tapatalk

 

[mt terry d]

The constitution is and has been violated/ignored in myriad ways.
Just a couple blatant examples:
Every gun law.
Affirmative Action/Discrimination.

It's whoever has the power and the guts to back up their claims that is "right".
"Constitutional" is in reality irrelevant.

So bottom line is "if the Feds (who have the greatest firepower) don't make them back down
they can do whatever they want.

 

[Eleven]

It’s the activity of hunting that they are regulating, not your choice to carry. You cannot hunt with (insert detail here). But if you aren’t hunting they are not taking away any right. You have the choice to hunt or not. Similar to open container laws, you can have an open container and you can drive, but you can’t do them at the same time. Driving is being regulated, not your right to drink alcohol.

 

[Tjdeerslayer37]

It’s the activity of hunting that they are regulating, not your choice to carry. You cannot hunt with (insert detail here). But if you aren’t hunting they are not taking away any right. You have the choice to hunt or not. Similar to open container laws, you can have an open container and you can drive, but you can’t do them at the same time. Driving is being regulated, not your right to drink alcohol.

That's fair. So then my question becomes what constitutes hunting? is sitting in my deer blind after tagging out "hunting" because i didnt unload my rifle? I think thats one that comes down to someone's discretion, more gray area, and im not one to toe any lines at all.

 

[Tjdeerslayer37]

Some fish and game laws are spongy in my opinion, and they haven’t been well tested in court in each state.

Here’s an example:

Virginia is a legal open carry state.

It’s also illegal to open carry any weapon that isn’t permitted during that specific season, unless you have a concealed carry permit.

Pretty much anywhere you’re hunting in Virginia, except urban archery, it is legal to shoot varmits year round with any weapon.

That’s seems pretty muddy to me.


Sent from my iPhone using Tapatalk

Yeah those are spongy for sure. similar to our firearm transport laws here. i have a concealed carry permit, my pistol can be in the vehicle with me loaded, but as soon as i put a long gun in the car with no case im not legal.

My above example about unloading after dark only applies to long guns also, if i have a concealed carry permit my pistol can stay loaded, but not my rifle.

 

[Eleven]

That's fair. So then my question becomes what constitutes hunting? is sitting in my deer blind after tagging out "hunting" because i didnt unload my rifle? I think thats one that comes down to someone's discretion, more gray area, and im not one to toe any lines at all.

Yep, that’s the nail on the head question, in my opinion. Does walking in the woods with a firearm even though you have no intent to hunt considered hunting if it’s in season and you have a license? Where is the line? What is the definition of ‘hunting’?

 

[cuerro viejo]

Yes. But I’m not sure I agree or disagree with the ability to inspect private property with loose probable cause.

LEO cant just pull you over because you are driving with out an infraction/probable cause, the same should apply to hunting. Probable cause IMO is shooting after LST, fourth report during migratory season, an odd spent shot gun case(think lead) on ground during Migratory etc, 7 ducks birds in one pile, animal hanging… etc

I have no issue with license request, on public or public easement when in procession or transporting game, but walking up to a rural house/camp and asking for it, doesn’t exactly really follow the law of probable cause.

I was mowing on riding lawn mower at private property camp and got asked for my hunting license. No issue abiding but that’s pretty loose definition of “ probable cause”

 

[TheTone]

Hypothetical questions, speculation and “I heard” never play well when discussing law in my experience

 

[Customweld]

Yep, that’s the nail on the head question, in my opinion. Does walking in the woods with a firearm even though you have no intent to hunt considered hunting if it’s in season and you have a license? Where is the line? What is the definition of ‘hunting’?

Here is the definition of hunting in Idaho:
Hunting means chasing, driving, flushing, attracting, pursuing, worrying, following or on the trail of, shooting at, stalking, or lying in wait for any wildlife whether or not such wildlife is then/ or subsequently captured, killed, taken or wounded.

If you are in the woods with a gun, the way the definition is written, you are hunting. It doesn't take much to "worry" the animals.

 

[Macintosh]

With respect to accompanying a hunter and needing a license—thats pretty common, many states require a license for anyone “involved in the pursuit of game”, regardless of whether that is with a weapon and you are personally shooting said game, or if you are mentoring or accompanying someone, or if you are taking photos. I remember when I was a kid my dad recieved a warning for not having a fishing license, even though he was just paddling me around while I fished…I was 12 or 14 and too young to require a license, but he needed one even not fishing. I distinctly remember the warden telling us we needed a license to take wildlife photos, etc. I am not sure how enforced this is, but that was 40 years ago and afaik nothing has changed.

 

[Erict]

In between debating hypotheticals, some may benefit by learning about core concepts that affect their rights, including probable cause, reasonable suspicion, the exceptions to when a search warrant is required and..

curtilage

"Curtilage includes the area immediately surrounding a dwelling, and it counts as part of the home for many legal purposes, including searches and many self-defense laws . When considering whether something is in a dwelling's curtilage, courts consider four factors:

1. The proximity of the thing to the dwelling.
2. Whether the thing is within an enclosure surrounding the home.
3. What the thing is used for.
4. What steps, if any, the resident took to protect the thing from observation/access by people passing by.

These factors were determined by the Supreme Court in United States v. Dunn .

In the context of criminal procedure , courts generally call any part of the property surrounding a dwelling that is not part of the curtilage an “ open field .” The open field/curtilage differentiation is important because, while a warrant is required to search the curtilage, officers are allowed to make a warrantless search of an open field."

 

[Weldor]

Interesting for sure. Is driving in the woods road hunting? Is hiking off trail hunting? The list could go on and on. I think the intent might have been good at some point but murky with so many other activities.JMHO

 

[Slickhill]

As far as sitting in a blind after you’ve tagged out with the intent to shoot some other animal that’s legal. It’s not illegal unless you do something illegal, IE shoot another deer you don’t have a tag for. Many places have concurrent seasons for different game animals and common sense would tell you that you can hunt one after you’ve finished hunting the other.

Unfortunately, if your local warden is the type to write tickets just because you’re probably going to get a ticket. Good news is that if you press the issue and take it to court it’ll be thrown out if you have a decent attorney and a judge who isn’t a meathead. But it’s going to cost you and the state time and money.

Semi related example. My family owns a place where there’s a dispute over easement access. It clearly belongs to us but due to different entities being involved, IE F&G, BIA, county sheriff department, nobody wants to deal with the issue. The game warden has stated that without a doubt he will write me a ticket for trespassing with no questions asked. The county judge has countered by stating that he will tear up the ticket every time I bring one into his court. Trouble is that I have to go through the hassle of appearing at the courthouse and all the mechanics of that. I’m sure a decent lawyer could take it to court and get it cleared up permanently pretty easily, but it’ll cost me $5k.

You sometimes find that you are either at the mercy of law enforcement or your pocketbook in situations like you describe.

 

[wapitibob]

ODFW tried to regulate open carry during hunting seasons and got slapped down by the courts. Their authority ends with hunting as I suspect is the case with every other state. After getting their regulation thrown out, which was implemented to keep husbands from shooting their wives animals, they created a new regulation that required used/un used Deer or Elk tag to hunt Bear is certain rifle units. Guys would hunt with a Bear tag and fill their wives Elk/Deer tag. Perfectly legal to open carry with a rifle when in the woods but doing it during season and with your wife in tow was a pretty tough sell to the game cop.

Here, the first question a game cop asks is "are you hunting". Saying yes opens you up to a lot.

 

[KurtR]

So some places you have to have a license just to go with some one that is hunting thats weird. If my wife draws a deer tag i go with and the wardens have never had a problem here. I know people who just run their dogs pheasant hunting with out a license and the wardens have no problem. I have shot a bunch of coyotes while skinning a deer out here once while the warden was checking my tag all he said was nice shot.

 

[Huntindog45]

This thread ought to be filled with some brilliant legal minds... yep, there they are.

 

[Jimmy]

I could see it either way, but I do know the law isn't hard enough on convicted poachers.