The NRA Is Larding State Constitutions with Frivolous, Redundant “Right To Hunt” Amendments

The law, lawyers, and the court.
Dec. 20 2012 1:26 PM

It’s Not Just the Second Amendment Anymore

How the NRA is larding state constitutions with frivolous, redundant “right to hunt” amendments.

A hunter holds a rifle while a deer hunting.
A hunter holds a rifle while a deer hunting. The NRA is pushing states to pass constitutional amendments protecting the right to hung.

Photo by Raymond Roig/AFP/Getty Images.

Even by the standards of state legislatures, Feb. 11, 2011, made for a sad and stagey day in Frankfort, Ky. Inside the capitol building, a representative named Leslie Combs presented HB 1, a bill calling for an amendment to Kentucky's constitution that would protect the right to hunt. “People have hunted since the dawn of civilization,” she told her colleagues, “long before the formation of government.” Greg Stumbo, the speaker of the House (and, like Combs, a Democrat from eastern Kentucky), concurred. “Once it's enacted in the constitution,” he said, “you, your children, your grandchildren, nor their children or grandchildren will ever have to worry about it again.”

But it was never quite clear who was worried in the first place. Certainly, Kentucky's legislators didn't seem too concerned—so many were jabbering during Combs' speech that the speaker pro tem had to bang his gavel three times—and they mostly looked ready to move on. The bill passed easily, and 84 percent of Kentuckians voted in favor of the amendment this November, making the Bluegrass State the 17th in the nation to consecrate its right to hunt.

Why, if Kentucky’s gun rights were never in peril, did this bill exist in the first place? More than anything else, it was because the NRA wanted it to exist. When Leslie Combs intoned that “people have hunted since the dawn of civilization,” she wasn’t reciting words she’d written—she was reading directly from NRA talking points. Now, at a time when the NRA is laying low in the wake of the Newtown school shooting, the group's right-to-hunt efforts reveal its essential character. As the push in Kentucky shows, this is an organization that derives its power by cultivating and inflaming a base in gun-friendly states—and by concocting imaginary threats and pursuing redundant rights.

The exact mechanics of Kentucky’s right-to-hunt amendment remain cloudy. Combs and Stumbo, the co-sponsors of HB 1, did not respond to several interview requests. But I did talk to NRA spokeswoman Stephanie Samford a few days before the organization went into a post-Newtown media blackout. “It was initiated by the NRA,” Samford said of the Kentucky amendment. “We worked with the legislature to get it passed.” Still, she would not explain what that work entailed—nor was she able to cite any tangible threats to Kentuckians’ ability to hunt. “The NRA doesn't wait for problems to arise,” Samford said, pointing to the existence of “animal rights extremists.”

This same pattern—mysterious process, fuzzy threats—characterized the right-to-hunt debate in the Kentucky legislature. It’s an understatement to say that HB 1 passed easily in 2011; the house's final count was 94 votes yes and only one vote no, with Jim Wayne as the lonely dissenter. Wayne, a Democrat from Louisville, is no gun hater. In fact, his father taught him as a boy to skin squirrels and gut fish. What drove Wayne to oppose HB 1 was his belief that the amendment was frivolous. “The purpose of a constitution is to establish a basic framework for the government to operate in and to be flexible in,” Wayne tells me. “The hunting bill set a precedent for constitutional amendments that's bad for the state.”

Wayne first learned about HB 1 in his congressional carpool. Louisville's five state reps often ride together for the hour drive to Frankfort. It gives them a chance to strategize and to debate, but it also reminds them to stick together. “Politically,” Wayne says, “the major divide in Kentucky is not conservative vs. liberal but urban vs. rural.” (For many people—voters and legislators alike—this divide is symbolized and aggravated by the basketball rivalry between the University of Louisville and the University of Kentucky.)

During one of those car rides, Wayne asked his colleague Darryl Owens about the rumblings he was hearing of a right-to-hunt amendment. “There had been no previous discussion on it,” Wayne says. “It kind of came out of nowhere.” Owens, who chairs the Elections, Constitutional Amendments, and Intergovernmental Affairs Committee, explained that Greg Stumbo, the speaker, was pushing for the amendment—and that he'd even given it the honorific designation of House Bill 1.

While Owens voted for the right-to-hunt bill, today he admits that it “didn't make much sense. Hunting doesn't seem to be in any jeopardy.” Still, with Stumbo behind it, the committee approved the bill without any discussion. The local press couldn't generate much back-and-forth, either. When news outlets flagged down animal-rights groups for the compulsory he-said, she-said quotations, they found that—in Kentucky at least—even PETA didn't oppose the right-to-hunt amendment. (The most a national PETA representative would say is that such amendments “are a solution in search of a problem.”)

In the capitol on that February day, Wayne made a similar point. After Combs finished reading her NRA-approved text, Wayne pressed the request-to-speak button on his desk. “Would the sponsor yield to a question?” he asked. “I've never in my 62 years felt a threat to my ability to either hunt or fish. Is there any documentation that says currently there is a threat to these liberties in our commonwealth?”

Combs forced a smile and cited all the other states that had passed right-to-hunt amendments: “States prior to us indicate that, uh, the need to basically endorse it as a right stands for itself.”

“Mr. Speaker,” Wayne asked, “would the lady yield to a second question?”

“No,” she replied.

That earned Combs a round of applause and even a few whoops from her fellow legislators. The day's most-telling line, though, came from Stumbo. “The National Rifle Association places this as their No. 1 priority,” the speaker said. In Kentucky, the NRA’s top priority instantly becomes important legislative business. Robert Damron, another Democrat and one of the house's strongest gun advocates (“We call him Bullet Bob,” says Wayne), estimates that “having the endorsement of the National Rifle Association is critical to legislators in 75 or 80 percent of the districts.” And that meant HB 1's passage was never in doubt. Once the bill was rolling, the NRA didn’t even have to do much lobbying. According to the Kentucky Legislative Ethics Commission, the group spent about $5,000 on HB 1 in February 2011, a figure that lagged well behind the state's biggest special interests. (That same month, the Kentucky Farm Bureau Federation spent about $17,000 on lobbying.)

Still, the NRA has shown a willingness to invest in this issue when necessary. In Arizona, the only state so far where a right-to-hunt amendment has failed, the NRA sent someone to testify before the state legislature, then dropped more than $200,000 during the election. The group plans to advocate for future amendments as well. To date, the states that have passed right-to-hunt legislation are largely in the South (Arkansas, Alabama) and West (Nebraska, North Dakota). But the idea seems to be migrating east. Seven state legislatures broached it in 2012, including those in New York, New Jersey, and Pennsylvania. “We'll continue to work on passing this legislation in other states moving forward,” says Samford, the NRA spokeswoman.

What she means, of course, is in other state constitutions. That raises a larger point: More and more, we're seeing legislators and interest groups clutter our constitutions with current events. One reason the lines at Florida polling places stretched so long this November was that voters had to parse 11 different amendments to their state's constitution. Michigan voted on six new amendments, including ones on renewable energy and on collective bargaining. Aren't constitutions supposed to be foundational and philosophical documents—documents that are insulated from this kind of petty maneuvering?

It's a question worth asking of any new amendment, but there's a special irony when we apply it to the NRA and the right to hunt. While the NRA pushes an originalist agenda nationally, arguing that the constitutional protections of the Second Amendment should remain inviolable, the interest group is happy to muck around with constitutions on the state level. It's the wrong way to operate, no matter what your beliefs on gun control. Back in 1890, when Kentucky was debating its current constitution, a delegate argued for the importance of being able to “adapt it to the wants of the people when the emergency arises.” But pet issues aren't emergencies, and neither are opportunities for political gamesmanship. In Kentucky, Jim Wayne was brave enough to speak out against an ill-advised amendment. Let's hope a few more state politicians follow his lead.

Craig Fehrman, a graduate student in English at Yale, is writing a book on presidents and their books.