Pennsylvania’s ban on most Sunday hunting doesn’t violate the U.S. Constitution, a federal judge has ruled in a suit against the state Game Commission.
There is no constitutional right to hunt, U.S. District Judge Yvette Kane said, finding that the restriction doesn’t violate the Second Amendment right to bear arms or reflect favored treatment to religions for which Sunday has special meaning.
Her decision upheld a state law that makes it “unlawful for any person to hunt for any furbearer or game on Sunday” on public and most private land.
The provision dates back to 1873.
It applies to big game, specifically white-tailed deer, black bear, elk and wild turkey, and to small game such as woodcock, rabbit, pheasant, quail, ruffled grouse and squirrel.
However, the legislature has exempted foxes, coyote and crows from the restriction. Feral hogs, which the commission doesn’t define as “wildlife,” can also be hunted on Sundays under an executive order. And farmers are allowed to hunt deer and elk that damage their property on any day of the week.
Also exempt are “non-commercial hunting grounds” such as bird dog clubs and beagle clubs that charge no fees to members and their guests and are at least 100 acres in size.
Violators face $100-$200 fines plus penalties that could “range into the thousands,” based on the animal illegally taken, said commission press secretary Travis Lau. Violators can also lose their hunting licenses.
Wildlife conservation officers made 17 arrests for Sunday hunting in the three years that ended June 30, 2013, Lau said.
A group called Hunters United for Sunday Hunting, or HUSH, and hunting rights activist Kathy Davis sued in federal court to prohibit the commission from enforcing the restriction. Davis said HUSH isn’t affiliated with other organizations but represents 23,000 individuals.
The challengers acknowledged that there is no legal precedent establishing a constitutional right to recreational hunting, but argued that U.S. Supreme Court gun-related decisions “represent persuasive authority that the Second Amendment has been extended to embrace the right to hunt.”
And their brief cited a provision in the Pennsylvania constitution of 1776 that said, “The inhabitants of this state shall have liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed; and in like manner to fish in all boatable waters, and others not private property.“
Rejecting that argument, Kane said that neither federal nor state law recognizes recreational hunting as “a constitutionally protected liberty or property interest.”
She also rejected the claim that the restriction violates the right to equal treatment under the law by allowing some but not all hunting on Sundays.
Although the restriction creates “different classes of hunters” – those who hunt certain species or hunt on noncommercial facilities on Sundays and those who can’t hunt other species or in other places on Sundays, the legislature may have made a rational basis for the distinction, she said, such as conservation or game management reasons.
Nor does the restriction reflect a religious bias that conflicts with the First Amendment’s freedom-of-religion guarantee, she said. Even if the challengers contend that the ban forces hunters “to observe predominant Christian religions by forbidding hunting on Sundays,” the Supreme Court has upheld so-called “blue laws” that prohibit certain types of businesses from operating on Sundays.
The commission’s Lau said there is no pending legislation to repeal the Sunday restriction but a bill has been introduced to exempt commercial hunting clubs the same way as noncommercial ones.
If the legislature does legalize Sunday hunting, it would be up to the commission to determine the details, he said.
Kane’s decision leaves the door open for the challengers go to state court to pursue related claims under state laws and the Pennsylvania constitution.
Davis said, “We intend to keep this issue in the courts. We believe it is unfortunate that Judge Kane disagreed with the Supreme Court Heller ruling where the justices said the Second Amendment was for self-protection and hunting.
She also said, “We also feel strongly that our practicing Jewish members are being treated unfairly. They are forced to take a day off during the week to hunt.”
For example, she said one Jewish board member of HUSH “lives like an Amishman one day a week (Saturday)- no car, phone, etc. Why can’t he hunt (his own land, mind you) on Sunday? He is being forced to honor a Christian ‘day of rest’ while no one honors his.”
She said that Maryland, West Virginia, Virginia and New Jersey expanded Sunday hunting opportunities in the past year.