Very few states in this Union have any kind of constitutional or statute law that protects the citizens and their right to make use of the natural resources for hunting, trapping and fishing. To my knowledge, the following states have constitutional amendments that supposedly guarantee the citizens of these states the unobstructed right to hunt: Alaska, Arkansas, Georgia, Louisiana, Minnesota, Montana, North Dakota, Oklahoma, South Carolina, Tennessee, Vermont, Virginia, Wisconsin. Nearly all of these amendments were voted on and approved by the people.

There has been a push of late for states to enshrine their rights to hunting, trapping and fishing but does such a move actually accomplish what people are led to believe it will, i.e. an actual constitutional protection, a guarantee that this right shall never be infringed?

Hunters in states like Idaho are trying to bet their guarantee on a state code. One of the difficulties not being realized by these outdoor sportsmen is that they are not looking at the entire code. It’s not necessarily that they are cherry picking or taking the code out of context, it is that I believe they are victims of exactly what the authors and signers of the code intended. In other words the code was written intentionally to confuse, while at the same time sounding as though it was accomplishing what some of the voters asked for. This is a common tactic of all untrustworthy politicians and another reason none of them can be trusted. This should also bolster the resolve that we the people should not rely on government to protect us from anything.

In Idaho, this code debate began with the announcement by the Idaho Department of Fish and Game (IDFG) that a “Wildlife Summit” was being planned for August of 2012.

Much of the initial outrage occurred when the sportsmen discovered that many anti-hunting, environmental, and non governmental agencies were invited to the Summit. While I certainly agree that anti-hunting and all environmental groups should have no say in fish and game management because of their agendas, whether as individuals or groups, these people do have a right to attend such a meeting.

There are other issues that surround the intent of the Summit. One of them being that some members of the IDFG Commission seem to be indicating that the goal of the Summit is to rewrite the mission of IDFG.

In an email I received from one Idaho citizen who attended a recent IDFG meeting, I was told that one member of the Commission said that these anti-hunting, non governmental organizations (NGO), have a good representation of Idaho sportsmen. The person told the commissioner that he was trying to change Idaho Code 36-103.

This may actually be true, at least from the perspective of someone working very diligently to preserve the hunting heritage of their state but the bottom line is the codes that are written and what they actually say and just as importantly how they would be interpreted in a court of law.

In many of the discussions I have read about this issue, the sportsmen seem intent on tossing out the first half of Idaho Code 36-103 , which reads:

36-103. Wildlife property of state — Preservation. (a) Wildlife Policy. All wildlife, including all wild animals, wild birds, and fish, within the state of Idaho, is hereby declared to be the property of the state of Idaho. It shall be preserved, protected, perpetuated, and managed. It shall be only captured or taken at such times or places, under such conditions, or by such means, or in such manner, as will preserve, protect, and perpetuate such wildlife, and provide for the citizens of this state and, as by law permitted to others, continued supplies of such wildlife for hunting, fishing and trapping.

The thrust of the focus by hunters appears to be directed at: “provide for the citizens of this state and, as by law permitted to others, continued supplies of such wildlife for hunting, fishing and trapping.”

This is done with disregard for the rest of the WORDS written into the code by lawyers. Before we take a bit of a closer look at this law, I’ll post here the entire statute:

36-103. Wildlife property of state — Preservation. (a) Wildlife Policy. All wildlife, including all wild animals, wild birds, and fish, within the state of Idaho, is hereby declared to be the property of the state of Idaho. It shall be preserved, protected, perpetuated, and managed. It shall be only captured or taken at such times or places, under such conditions, or by such means, or in such manner, as will preserve, protect, and perpetuate such wildlife, and provide for the citizens of this state and, as by law permitted to others, continued supplies of such wildlife for hunting, fishing and trapping.
(b) Commission to Administer Policy. Because conditions are changing and in changing affect the preservation, protection, and perpetuation of Idaho wildlife, the methods and means of administering and carrying out the state’s policy must be flexible and dependent on the ascertainment of facts which from time to time exist and fix the needs for regulation and control of fishing, hunting, trapping, and other activity relating to wildlife, and because it is inconvenient and impractical for the legislature of the state of Idaho to administer such policy, it shall be the authority, power and duty of the fish and game commission to administer and carry out the policy of the state in accordance with the provisions of the Idaho fish and game code. The commission is not authorized to change such policy but only to administer it.

Lawyers and a court of law can rip this Code to shreds and resulting rulings will leave us all wondering how that was done. While it’s easy as hunters to focus on those highlighted words above, even though the authors may have intended that to be your focus, all the other words have meaning too. To a lawyer and a judge, multiple meanings.

In brief, Part A above does not guarantee that the IDFG or the state of Idaho must grow game populations so that everyone in Idaho who wants to hunt, trap and fish can do so and for all the species in which seasons are provided. As a matter of fact, the Code says that the only time taking of game will be permitted is when there is enough wildlife to go around. However, that “taking” can be limited by any means the IDFG sees fit.

Part B then goes on to give the fish and game commission the authority to administer this code. As much as all of would love to believe the fish and game commission doesn’t have the right to “change Idaho Code 36-103″, there’s nothing really in that code that guarantees Idaho citizens a right to hunt, trap and fish. What some members of the commission might be interested in doing by inviting anti-hunting groups to the summit, is to build support to change the mission statement of IDFG.

One would think that with the intent of Idaho Code 36-103, i.e to guarantee Idaho citizens the right to hunt, trap and fish, a step up to a constitutional amendment would be an easy task. That didn’t happen though did it? Perhaps now you are getting a better understanding as to why. Who’s your friend? Who’s on your side?

My intent here was not to dissect Idaho Code but to make a broader statement and support with facts on the ground. The truth is not even a constitutional amendment guarantees outdoor sportsmen any right to hunt, fish or trap. It may be perhaps the best chance at achieving such but is far from a blank check guarantee. And for those states with some kind of statute, like Idaho, no code or statute is protected from change, especially those with an agenda.

Most amendments to constitutions are non specific. In states that have such constitutional changes, the amendment may read that the citizens of that state have a right to hunt, trap and fish and that it may go so far as to require the fish and game departments to “perpetuate” wild game for hunting opportunities for the citizens. This is so non specific it leaves the door wide open to interpretation. Forget the intent of the amendment. Intent means nothing when dealing with law makers with an agenda.

Consider the Second Amendment to the United States Constitution. Recently in two Supreme Court rulings it was determined that Washington, D.C. (Heller vs. District of Columbia), and Chicago (NRA vs. City of Chicago) could not prohibit citizens from owning a handgun. While the Second Amendment is suppose to guarantee American citizens a right to keep and bear arms, we see that even with a Supreme Court ruling, the citizens of Washington, D.C. and Chicago do not have a right to keep and bear arms as they wish.

The reality of it is, we deal with many things most of us are completely unaware of. In our reliance on government to protect us, we refuse to believe that our constitutions and laws will not protect us and do what we have been told they will do. Even Supreme Court rulings are not enough to force cities to comply. They would rather take their chances in more courts with more lawsuits because that’s where their friends are. Surely if the rulings of the Supreme Court mean nothing to the governments of local cities, why should we rest that our state governments care one way or the other about our rights to hunt, trap and fish?

And while you are sleeping, changes to our laws are taking place that we know nothing about. For instance, in Maine, I was researching to find out what the state statutes were regarding trapping. You can find the details here, but what I discovered was that during a federally mandated “recodification” process, your laws can and are being changed and you may not know it.

We are told by our government that recodification of all states’ laws will be done every ten years. The intent of this action is supposed to be to clear up redundancies and other issues that make deciphering and interpreting the laws clearer and easier. What I discovered was someone took this opportunity to rewrite the laws the way they wanted them done. BTW, a new round of recodification is supposed to take place in 2013. Pay attention!

With a legislature either deaf and dumb to the responsibilities of the job or in on the illegal action, it is a snap to pass these recodified laws. After all, it’s just a housekeeping measure, right?

We must stop depending on government for anything. They cannot be trusted nor will they protect you and I from anything. To stop this would be monumental because it would require a complete makeover that begins in our schools and homes. At the ballot box we can work harder at getting the right people elected but it doesn’t end there. We need watch dog groups that will follow everything each law maker does and make sure the public knows and understands. This of course will never happen because there aren’t enough people who care.

Tom Remington

Chicago claims that the Federal Government does not have power over the states and/or municipalities to create their own gun laws. That claim has been challenged and appealed to the highest court in our country. The U.S. Supreme Court will hear McDonald vs. Chicago.

We know that the newest member of the Court, Justice Sonya Sotomayor, sat on an appeals court and supported a ruling in New York very similar to the McDonald vs. Chicago case in which she ruled that Federal gun laws cannot overrule state laws.

It may just be that the Supreme Court will decide whether its ruling in District of Columbia vs. Heller also extends to the states. Heller did not clarify that and I speculated back then that the day would come when a decision from the courts would be needed. But there are issues in this that will make the case interesting.

As I see it, some are wanting their bread buttered on both sides. Many individuals cry out for Second Amendment protection for their individual right to keep and bear arms, while at the same time demanding enforcement of the Tenth Amendment. The Tenth Amendment spells out that the only power the Federal Government has over the states is what is given them by the Constitution.

That in and of itself presents a problem to those seeking to have protection of the U.S. Constitution to own guns and yet if states have the power to make and enforce their own gun laws, as is supposedly granted by the U.S. Constitution, then we have a problem.

But it’s not even that simple. Recently the Ninth Federal Court of Appeals ruled that the Fourteenth Amendment incorporates the Second Amendment therefore giving the Federal Government power to control guns.

With several states now either having or considering laws to challenge the Federal Government in order to reinsert their rights under the Tenth Amendment, does it not make sense that states, such as Illinois, will need to examine their own constitutions to see if gun ownership is guaranteed.

McDonald vs. Chicago may prove to be decisive in two ways. It may clarify federal power over the states, something many states are trying to get away from or it may be one more step toward dismantling the strong arm of the federal government.

This case will be heard sometime next year.

Tom Remington

It was expected that at some point these laws would be challenged and it appears actions to do such has begun. The Federal Bureau of Alcohol, Tobacco, Firearms and Explosives has published open letters to federal firearms license holders in Montana and Tennessee explaining that federal law trumps state law when it comes to gun laws.

“As you may know, federal law requires a license to engage in the business of manufacturing firearms or ammunition, or to deal in firearms, even if the firearms or ammunition remain with the same state. All firearms manufactured by a licensee must be properly marked. Additionally, each licensee must record the type, model, caliber or gauge, and serial number of each firearm manufactured or otherwise acquired, and the date such manufacture or other acquisition was made. Firearms transaction records and NICS background checks must be conducted prior to disposition of firearms to unlicensed persons. These, as well as other Federal requirements and prohibitions, apply whether or not the firearms or ammunition have crossed state lines.

In a report filed by CBS News, it seems to indicate that even though these states are claiming sovereignty under the Tenth Amendment, the Federal Government may have power over such gun laws as the Firearms Freedom Act, via the Commerce Clause.

Read literally, the Tenth Amendment seems to suggest that the federal government’s powers are limited only to what it has been “delegated,” and the U.S. Supreme Court in 1918 confirmed that the amendment “carefully reserved” some authority “to the states.” That view is echoed by statements made at the time the Constitution was adopted; New Hampshire explicitly said that states kept “all powers not expressly and particularly delegated” to the federal government.

More recently, federal courts have interpreted the Tenth Amendment narrowly, in a way that justifies almost any law on grounds that it intends to regulate interstate commerce.

World Net Daily points out in an article of their own that the Montana Firearms Freedom Act bill declares that Congress has not “expressly pre-empted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition”.

I have been saying for some time that all of this will eventually wend its way through the courts ultimately landing at the feet of the United States Supreme Court. This is one reason the approval of Sonia Sotomayor as a Supreme Court justice is vitally important, especially due to the fact that she is anti Second Amendment and has shown little regard for the original intent of the Constitution.

Also at issue in this debate are pending lawsuits challenging gun laws in other states. Chicago’s gun ban is being challenged after the District of Columbia vs. Heller decision reaffirming an individual right to keep and bear arms. The Seventh Circuit Court of Appeals has ruled that federal gun laws do not pertain to the states, a position taken by Sotomayor.

This is an interesting ruling considering that prior to this the Ninth Circuit Court ruled that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment and therefore federal law, which now holds the ruling of the District of Columbia vs. Heller decision, applies to the states rendering them unable to create gun laws that supersede federal laws. This will end up at the Supreme Court.

While we are discussing the Fourteenth Amendment, the Second Amendment and Ninth and Tenth, the BATFE is sending out public letters, assumed to be authorized by the Obama administration, to federal firearms dealers in Montana and Tennessee, stating that federal law supersedes state laws, at least as they pertain to firearms and ammunition.

Where will this all end up? I believe the Supreme Court but I know not how long this may take. In the meantime, the Obama administration, made up of mostly anti-gun people, are grasping to gain control over your right to keep and bear arms. From the day Obama was elected, the people rushed to stores buying up guns and ammunition at unprecedented rates. With the combination of a new president and staff known to want to ban gun and gun sales and the District of Columbia vs. Heller ruling, it has helped spur more laws to relax gun restrictions. This, I am positive, angers the Obama administration.

None of this comes as a surprise to Gary Marbut, President of the Montana Shooting Sports Association. Marbut was directly responsible for the Montana Firearms Freedom Act. In a letter sent to his members of MSSA, Marbut points out what he views as little concern over the letter and how it was expected.

1) The letters are addressed only to FFLs and purport to assert authority only over those licensees already under the federal thumb because of their licenses. We’ve always assumed that people with existing FFLs would not be players in the state-made guns exercise because they will not wish to risk thwarting the earned reputation the BATFE has for vindictiveness. The letters are not addressed to non-FFLs, those folks who are potential participants in the state-made guns business.

2) The BATFE letters may lack any official import because they are not signed by the official who appears in the signature block, but by some unknown other person. It’s difficult to place much credence in a missive upon which the purported issuing person is unwilling to put his signature, and for which the signer is unknown.

3) The essence of the letter is a declaration that the laws that the BATFE enforces supercede the U.S. Constitution and the Tenth Amendment. I understand that the BATFE hopes that is so, but that’s far from proven yet. (We still recommend that nobody make these state-made guns until we can litigate and vet the principles involved.)

4) The letters, if they are official even though unsigned by the issuer, will help us establish standing to get this issue squarely before the federal courts. The feds have thrown down the gauntlet.

I like Montana’s approach to their action in the creation of their Firearms Freedom Act. They are proactively seeking to bring this issue to the courts for a ruling. They believe in their own state’s constitution and that they, according to their contract with the people and the United States Government, have the sovereignty and freedom under the U.S. Constitution, to make their own laws in matters such as this.

This will be a long and drawn out affair but one that is ripe for a good battle. Let’s hope this battle arrives before Obama can stack the Supreme Court with more anti-gun “empathetic” justices.

Tom Remington

I have yet to decide but I may attempt to live-blog that conference. If I don’t, I will update readers at the conclusion of the call. I am grateful to have been able to be a part of this call and I thank the Heritage Foundation, one of my all-time favorite organizations.

As most of you know, I have real concerns about Judge Sotomayor’s appointment to the Supreme Court. Among many reasons, her rulings have indicated to us that she sees very little relevance in the U.S. Constitution and the Bill of Rights as they pertain to states, cities and individuals. She recently ruled that the Second Amendment is a federal law that does not apply to the states, or cities such as Chicago, that, like Washington, D.C., has an outright ban on guns.

We know that the U.S. Supreme Court ruled in a 5-4 decision in District of Columbia vs. Heller, that the Second Amendment guarantees the individual citizen the right to keep and bear arms. This doesn’t seem to have had much of an impact on Judge Sotomayor who still favors cities like Chicago being able to strip that right away from you and I.

This should concern every citizen of this country. Whether you support the right to keep and bear arms, it is more than troubling that a potential life-time appointee to the United States Supreme Court would hold such disregard for the Constitution. The fundamental glue that holds this country together is that judges, sworn to uphold the Constitution and to protect the rights of all citizens, rule according to the laws of this land not make up their own. For a judge to have disregard for that rule of law, claiming that states and cities have the right to create their own laws contrary to those guaranteed us under our Constitution, leaves us to ask if Judge Sotomayor believes any right guaranteed us has any Constitutional value?

For anyone to truly believe this can only make us ask, why do we even have a Constitution?

Tom Remington

This issue is a bit complicated but I think if you take a second you should be able to understand what is going on. Recently the Ninth Circuit Court ruled in a California case that the Second Amendment, the right to keep and bear arms, applies to the state because of the Due Process clause of the Fourteenth Amendment.

Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The NRA filed a lawsuit against the City of Chicago because it continues to ban guns after the decision in District of Columbia vs. Heller. Coming after the Ninth Circuit Court decision, the Seventh Circuit Court ruled that the Second Amendment does not apply to the states.

In its lawsuit against Chicago, now about two-thirds of all the many states have signed amicus briefs in support of the Ninth Circuit Courts ruling to incorporate the Second and Fourteenth Amendments.

While this all sounds good for enforcing the Second Amendment as an individual right, isn’t this a two-edged sword? By agreeing to the incorporation, aren’t we saying that the federal government is the ultimate authority over the states? If not the Second Amendment being overruled by the Fourteenth, then what else will the federal government snatch away from the states?

Presently, there is a movement in this country to regain state sovereignty. Does signing on to this ruling now claim states are willing to fore go their sovereignty in order to enforce the Second Amendment?

Or better yet. Why is it that we need one Constitutional Amendment to force an existing one? The Second Amendment was one of the original. It was drafted knowing full well the importance of a God given right to self protection and protection from tyranny. Isn’t that good enough? Why do we need to incorporate with the Fourteenth in order to honor the Second?

Tom Remington

A U.S. Court of Appeals has upheld the Chicago gun ban.

Tom Remington

When Senator Barack Hussein Obama was a candidate for president of the United States, I spent a great deal of time writing about his history when it comes to Second Amendment issues. This also included multiple articles on the most prominent Second Amendment case the Supreme Court ruled on in recent history – District of Columbia vs. Heller.

Over seven months ago I brought you a story that got very little attention and few people know about even today. Perhaps it is time to revive that story a bit.

From 1994-2002 Obama was director of an organization called the Joyce Foundation. It’s aim was the destruction of the Second Amendment. This foundation, led by Barack Obama, tried to manipulated the courts, as well as the U.S. Supreme Court by stuffing the law review libraries in several prominent law schools.

At the Supreme Court level, we know there are very few prior cases that deal with the Second Amendment. After all, it took well over 200 years before the court would finally make a ruling on whether the Second Amendment actually did guarantee individual citizens the right to keep and bear arms. (District of Columbia vs. Heller)

It is known that all stewards of the law have to rely on past cases in presenting an argument as do judges in rendering decisions. If there is no actual case history, often lawyers and judges will refer to articles written at law school review libraries. These articles carry some weight because they are accepted and approved before being published.

It was Obama’s contention and that of the Joyce Foundation that if they stuffed enough anti-Second Amendment law review articles into college libraries, this would help sway the courts to render decisions against the Second Amendment. Class act wouldn’t you say.

As they say, there’s more than one way to skin a cat. We now wonder how Obama will achieve what many of us already know – his desire to rid the country of guns and destroy the Second Amendment.

We know since becoming president he has tried to reduce the availability of ammunition. He was unsuccessful in ordering all military spent brass, used by companies to reload and resell, destroyed and rendered useless.

We also know that when Obama traveled to Mexico recently, he told leaders he would encourage his Congress to ratify CIFTA – a global treaty former assault-weapons-banner-in-chief, Bill Clinton, tried to get passed. This treaty would submit U.S. citizens under the power of a U.N. entity that would take away our guns.

We can feel quite confident that Obama will find any means necessary to take our guns. (laugh if you want to). He is not afraid of slimy court manipulations and fraud to influence the courts nor is he shy about bringing in outside gangs to help him with his agenda.

So, with all this said, can we begin to think that just maybe Obama is using an anti-gun Sonia Sotomayor as another game piece to achieve his ends? For those who care enough to learn, we have come to realize that Sotomayer is about as anti-Second Amendment as they come. Consider this.

Six months after Justice Antonin Scalia delivered the Supreme Court’s 5-4 decision in upholding the belief that the Second Amendment was a guaranteed individual right, given to us by God and not allowed by the Constitution, Federal Appeals Court judge Sonia Sotomayor completely disregarded District of Columbia vs Heller.

In Maloney vs. Cuomo, she ruled that the Second Amendment had nothing to do with individual rights nor did the federal government have any say in the matter. She claimed the states had the right to make any gun banning laws they wanted regardless of what the Second Amendment said (my words not hers).

Of course I have no idea where gun banning sits on Obama’s priority list. Does anyone? But we know it is there. He stated clearly that he wanted an “empathetic” justice who could rule by having a better understanding of the way things are in our country today, and it appears he found one of those. If gun banning is second, third or lower on Obama’s wish list of rights to take away in order to achieve his fascists regime, picking Sotomayor may have been just another bonus feather in his cap – kind of a two or more for the price of one.

Obama is a big enough narcissist that he believes, like back in the Joyce Foundation days, he can manipulate even the United States Supreme Court in order to fulfill his fascist agenda.

Tom Remington

Montana’s HB246 is the talk of the states it seems these days. It didn’t take too long I suppose but with each passing day, more media, not the main stream though, and new Internet media are picking up on the brazen and testy new gun law bill that Montana signed into law last month. I first brought you that story right here on the Black Bear Blog.

I’ll dispense with all the proper speak and get to the nitty gritty of the bill. Montana’s HB246 says that any guns or gun parts manufactured in the state of Montana and sold exclusively in the state of Montana cannot be regulated by the federal government.

Back on April 20, 2009 I made this comment.

While several states are calling for legislation that reaffirms their state sovereignty in opposition to a federal government that is out of control, Montana, it appears, has taken this step a little bit further. No one knows how this will play out in the courts as it is sure to be challenged.

We know that many states now have taken some degree of assertiveness, if only to make a statement in protest of too much governmental control. Montana seems to be the first to draw a big and bold line in the sand, while at the same time dropping a grenade into the court (figuratively speaking) of the U.S. Government.

The Global News Post describes Montana’s bold move this way.

Montana has gone beyond drawing a line in the sand. They have challenged the Federal Government. The fed now either takes them on and risks them saying the federal agents have no right to violate their state gun laws and arrest the federal agents that try to enforce the federal firearms acts. This will be a world-class event to watch.

Montana could go to voting for secession from the union, which is really throwing the gauntlet in Obama’s face. If the federal government does nothing they lose face. Gotta love it.

Speaking of secession, if you will recall back during the U.S. Supreme Court case of District of Columbia vs. Heller, the state of Montana was hinting that should the Supreme Court rule against an individual’s right to keep and bear arms as an interpretation of the Second Amendment, then the U.S. Government would be in breech of the contract Montana had with the U.S. Government when it agreed to join the union. Some legal authorities believe that Montana has that “ace up the sleeve” while other states don’t.

Which brings me to an additional point in this discussion. Since Gov. Schweitzer signed Montana’s bill, at least two other states, Alaska and Texas, have drafted similar bills.

Gary Marbut, President of the Montana Shooting Sports Association, says he’s not really sure how all this would play out in court. As a matter of fact, Marbut says the MSSA is looking into the possibility of taking a proactive approach and filing a suit in court in order to prove the legal principles within HB246.

Tom Remington

I have yet to complete reading the entire ruling and far be it from me to begin to fully understand this case, the ruling and what we can expect from it in the future. There is someone, far more educated in these things than I and considerably more able to explain this.

Clayton Cramer, someone who assisted in the briefing process of the Supreme Court’s hearing of District of Columbia vs. Heller, begins to explain to his readers about Nordyke v. King.

Tom Remington

While much of this case was influenced by District of Columbia vs. Heller and doesn’t actually strike down the state restriction on gun regulation, it probably sets the stage for an appeal to the U.S. Supreme Court.

More as I have it and understand it.

Tom Remington