In Maine, a 'Second Amendment for Food'?

UPDATE: On March 28, 2024, the Maine Supreme Court ruled the state’s Sunday hunting ban is not rendered unconstitutional by the 2021 right-to-food amendment. 

Maine has the only state constitution that protects the right to food. The provision, acclaimed as a breakthrough by human rights advocates, was added by statewide referendum in November 2021. In October, Maine’s highest court is expected to hear arguments in Parker v. Department of Inland Fisheries & Wildlife, a challenge to the state’s ban on Sunday hunting that will give the high court its first opportunity to begin to define the scope of this amendment.

Many states have constitutional rights to hunt and fish, as well as statutory provisions honoring traditional indigenous hunting and fishing practices. Minnesotans have a constitutional right to sell farm or garden produce without a license. But Maine’s constitutional provision is potentially broader, with open-ended language incorporating natural law and suggesting the possibility of a government obligation to provide food. Some commentators have described its scope as “mysterious.”

The amendment states:

“All individuals have a natural, inherent and unalienable right to food, including the right to save and exchange seeds and the right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well‐​being, as long as an individual does not commit trespassing, theft, poaching or other abuses of private property rights, public lands or natural resources in the harvesting, production or acquisition of food.”

Advocates in several states, including Washington and West Virginia, are mounting their own right-to-food campaigns and waiting to see how Maine’s provision is interpreted. Meanwhile, in Parker, the supreme judicial court will begin the process of discerning how broad Maine’s amendment really is.

The plaintiffs, Virginia and Joel Parker, argue that the state’s restrictions on Sunday hunting violate their constitutional right to food because they can’t hunt with their five children during the week due to school and work obligations. As a result, the Parker family, who supplement their diet by hunting game, can hunt together only on Saturdays. They arguethat the term “harvest” in the constitutional “right to food” provision should be construed to encompass game hunting, so that a “right to food” includes a right to hunt every day of the week, so long as the family does not engage in theft, trespassing, poaching or other abuses of the land.

The strength of this particular case remains to be seen. The complaint was dismissed with prejudice by a lower court. And the legislative history of the amendment seems to stack up against the Parkers. For example, a specific reference to hunting was deleted from the proposed “right to food” amendment during legislative debates, and the lead sponsor of the amendment insisted that it would not cause any changes to the state’s hunting and fishing regulations. Further, the Maine legislature has repeatedly rejected more direct efforts to rescind the Sunday hunting restrictions, and there is no evidence that the legislature or the voting public understood that the “right to food” amendment would have the indirect effect of altering those laws.

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 upheldunder 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 National Rifle Association has not appeared in the Maine case as an amicus. 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.

Martha F. Davis is a university distinguished professor at Northeastern University School of Law.