Hunting and the Second Amendment

ABSTRACT Debates about the meaning and scope of the Second Amendment have traditionally focused on whether it protects the keeping and bearing of arms for self-defense, prevention of tyranny, maintenance of the militia, or some combination of those three things. But roughly half of American gun-owners identify hunting or sport shooting as their primary reason for owning a gun. And while much public rhetoric suggests that these activities fall within the scope of the Second Amendment, some of the most committed gun-rights advocates insist that the Amendment "ain't about hunting" and that, no matter their heritage and value, such activities are constitutionally irrelevant. This Article argues that these advocates are mostly correct, and that hunting and recreational uses of arms have, at best, a tenuous claim to constitutional protection. This conclusion has implications not only for the potential regulation of hunting and shooting sports, but for broader issues such as determining which arms are "in common use" and therefore protected by the Second Amendment. At a more general level, it suggests that an important and influential part of American gun culture--populated by tens of millions of guns and gun owners--is simultaneously protected and regulated without the direct involvement of the Second Amendment. INTRODUCTION The Supreme Court's decision in District of Columbia v. Heller affirmed the existence of an "individual" right to keep and bear arms for certain non-militia purposes, (1) and clarified that this right is "not unlimited" and does not "protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose." (2) In the wake of Heller, one of the central difficulties in Second Amendment law and scholarship is determining which gun-related activities are covered by the right to "keep and bear arms." The private possession of a handgun for self-defense in one's home is generally covered, while the use of a gun to rob a bank is certainly not. (3) Separating these and other types of keeping and bearing has become central to Second Amendment analysis. (4) And yet very little attention has been given to what traditionally were, and might still be, the most common uses of arms. (5) Hunting and recreational uses like target shooting and "plinking" (6) have long been the primary reasons for gun ownership in the United States. (7) And although self-protection might recently have eclipsed recreation as the most common reason for gun ownership (8)--apparently due both to the increasing ownership of guns for self-defense and the declining popularity of hunting (9)--millions, and perhaps tens of millions, of Americans identify themselves as hunters every year. (10) That number dwarfs even the highest estimates of people who engage in armed self-defense annually. (11) Beyond the numbers, hunting has long had a special cultural salience in the United States, (12) and is especially treasured in rural communities where gun ownership and gun culture are most prevalent. (13) This Article analyzes the Second Amendment status of hunting and other recreational uses of guns (referred to collectively as "hunting" except where greater specificity seems required) both as a matter of constitutional rhetoric and as a matter of constitutional doctrine. Though the focus is on hunting specifically, the analysis demonstrates a more general point: that to fully measure the Second Amendment's influence on gun regulation, one must consider not only its relatively limited doctrinal impact, (14) but its enormous rhetorical and political power. (15) Constitutional rhetoric has not only dominated the political debate over gun regulation in the United States-sometimes with little connection to the substance of constitutional law--but has shaped that doctrine in fundamentally important ways. …