Does the "right to food" include a right to hunt on Sundays?

(AP Photo/Carolyn Kaster, File)

Back in 2021, voters in Maine approved first-of-its-kind language enshrining a right to food into the state constitution; specifically the right to “grow, raise, harvest, produce and consume the food of their own choosing”, at least if those efforts don’t run afoul of any existing laws.

A couple named Joel and Virginia Parker maintain that their right to harvest food includes the right to hunt for game to fill their freezer, and the state’s ban on Sunday hunting is infringing on that right. The Parkers sued Judy Camuso, the Commissioner of the Department of Inland Fisheries and Wildlife, over the Sunday hunting ban last April, only to see the case dismissed by a judge in Kennebec County last November. The Maine Supreme Court, however, agreed to hear the Parkers’ appeal in this coming term, and oral arguments in the case are likely to be heard in early October.

The Parkers say that, due to various school and work obligations, they can only hunt together as a family on the weekends and believe they should be able to hunt for the game they say they use as part of their diets on Sundays as well as Saturdays so long as they don’t break other laws in the process.

Though the state Supreme Court did decide to take the case on, the Parker family may be facing an uphill battle: its case was dismissed by a lower court, and a range of hunting and wildlife organisations including the Maine Farm Bureau, Maine Woodland Owners, and Maine Forest Product Council have all come out in favour of retaining the Sunday ban.

The liberal Brennan Center for Justice also thinks the Parkers don’t have much of a case, arguing that references to hunting were removed from the referendum language during legislative debates and that the author of the referendum claimed it wouldn’t have any impact on the state’s hunting rules and regulations.

The Maine Farm Bureau, Maine Woodland Owners, and Maine Forest Product Council filed an amicus brief arguing that eliminating the Sunday hunting restrictions would actually have a deleterious impact on hunting access. In Maine, private land is open for hunting unless the landowner takes affirmative measures to restrict access by, for example, posting signs. The groups argue that without the assurance of Sunday restrictions that give private owners one day a week when they can walk on their land without wearing orange vests or taking other precautions, landowners might simply decide to bar hunters completely.

While many states have eliminated Sunday hunting bans in recent years, hunting and fishing restrictions of some kind are common, ranging from bans during particular seasons to limits on nighttime hunting to restrictions on particular weapons or gear. Even in states that enshrine a constitutional right to hunt and fish, these restrictions have generally been upheld under a “reasonableness” standard. The Parkers, however, argue that any restriction on the right to food must be justified under the far more onerous strict scrutiny standard. Under their theory, a constitutional right to food would bring all hunting or fishing restrictions into question.

The Brennan Center then bizarrely tries to insert the National Rifle Association into the case even though the group hasn’t filed any amicus briefs in support or opposition to the Parkers claims.

However, the NRA is highly interested in ending Sunday hunting restrictions in Maine and elsewhere. The Parkers’ lawsuit has attracted the organization’s attention as a possible means to achieve that end. Indeed, Republican legislators in Maine who supported the right to food alluded to this nexus of interests, labeling the proposal “a second amendment for food.”

As human rights and anti-hunger advocates pursue right-to-food measures modeled on the Maine amendment, they should watch this case. Under current law, hunting largely falls outside of federal Second Amendment protections, making reasonable regulations legally defensible. A “second amendment for food,” however, may increase the burden on government for defending these regulations and serve as a stealth vehicle for frustrating reasonable restrictions on guns and gun use in the context of hunting. The Parkers’ case will be an early test of this theory.

Bans on Sunday hunting aren’t really about the Second Amendment, even if the NRA has lobbied to remove the blue laws from the handful of states where they’re still in place. But the Brennan Center overstates its case when it claims that hunting “largely falls outside of federal Second Amendment” protections. The Supreme Court has said that the core purpose of the right to keep and bear arms is self-defense, but that doesn’t mean that any and all other lawful activities involving firearms have no protections whatsoever. It just means that the Court hasn’t really weighed in on that particular aspect of our Second Amendment rights.

Having said that, I tend to agree that the Parkers are going to face an uphill battle in their lawsuit. Even if Mainers possess a right to “grow, raise, harvest, produce and consume the food of their own choosing”, that doesn’t mean that they must be provided access to hunting grounds on Sunday to exercise that right, or that they have the right to hunt together as a family. The Parkers acknowledge in their complaint that they can hunt together on Saturdays, but seek to be able to do so on Sundays as well because their work and school schedules only allow them to hunt as a family on the weekends.

IFW relied upon 12 M.R.S. § 11205, which makes it a crime for any person to “[h]unt wild animals or wild birds on Sunday[.]” With the Sunday hunting ban in effect, the Parkers are effectively limited to hunting only on Saturdays, one day a week, as their work and school schedules prevent them from hunting on weekdays. This significantly reduces the time they are able to spend hunting, their ability to hunt as a family, and their ability to travel to more remote areas of the state to hunt.

I personally don’t have an issue with Sunday hunting, and I find the argument that repealing or overturning the Sunday hunting ban would lead to many landowners forbidding hunting on their property altogether fairly unrealistic, though Maine is somewhat of an oddity in that hunters are legally allowed to access private land without landowner permission so long as the property is not posted “no trespassing”. Still, I think it’s a stretch to argue that the ballot referendum enshrining a right to food encompasses a right to hunt on Sunday, at least based on the arguments from these particular plaintiffs.

Lawmakers have tried to undo the Sunday hunting ban at the statehouse, but have repeatedly fallen short of the votes necessary to fully or partially repeal the restriction. As frustrating as the status quo may be, the legislature is still the best place to decide the particulars of the state’s hunting regulations, especially given the potential conflict between the private property rights of landowners and the rights of Mainers to harvest their own food. The state is one of just two in the country that still maintains a Sunday hunting ban, and that should be embarrassing enough to get lawmakers to take a second look at the current restrictions and reach an equitable solution protecting property rights while allowing hunting on Sundays on both public land as well as private property where the owner wants to allow it.