As we reported in our earlier article about Proposed Amendment No. 2, I sent an email to the measure’s sponsor, Senator Pete Pirsch, pointing out some legal concerns about the language chosen for his amendment.
Readers can read in detail about those concerns in that prior article, so I’ll give the bottom-line version here: a couple of specific word choices, which are critical from a legal perspective, stand to either diminish the effectiveness of Amendment No. 2 or even have the potential for negative outcomes.
The full text of the amendment can be read in the article to which I linked, above, or within the full official language provided by the Nebraska Secretary of State, located here.
The introductory phrase, with the words of concern in bold, is shown here:
“A vote FOR this constitutional amendment would set forth a constitutional right to hunt, to fish,and to harvest wildlife and would designate public hunting, fishing, and harvesting of wildlife as a preferred means of managing and controlling wildlife.”
Senator Pirsch responded to my message on Sunday, requesting that I call him to discuss those concerns, which I did, and he thanked me for giving him the opportunity to respond. The Senator is to be commended for his attention and willingness to discuss a legislative measure / ballot item with interested citizens, and I appreciate that he took the time to do so. It is also entirely understandable that we didn’t hear from him immediately after contacting him: Nebraska State Senator’s email addresses are posted on the NE Legislature website, and therefore, they can get a lot of messages.
I promised both Senator Pirsch and visitors to this site that I would follow-up if I heard from the Senator, even publish an editorial if he chose to write one, etc.
Senator Pirsch let me know at the outset of the call that he was at a family gathering and didn’t have much time to talk, so I decided that my main goal should be to focus on the key problems we’ve found in Amendment No. 2’s language and to determine if he had any additional information about them which would change our assessment.
It’s important to point out that Senator Pirsch signaled lack of time, not me. I’d rather have the time available to have a thorough debate. I will be following up further at the end of the week, and if he’s willing to spend a bit more time, I’ll do so. He’s also welcome to respond to this, either through the comment section or by email directly.
In any case, noting the need to focus, I wanted to get an answer to this question, which had been in my email to him late last week:
“Had you and/or the organization which brought the legislation to you, the NRA, contemplated the following problems, and if so, what were the conclusions?”
A brief summary of Senator Pirsch’s explanation:
- His proposed Amendment was extensively debated over the course of an entire legislature (two sessions), therefore, there were hours of floor debate, during which an extensive legislative history was laid down. Some of the language found in the final version of the measure, and therefore, appearing on ballots, was extensively combed over.
- In fact, Senator Pirsch informed, some of our very particular concerns were addressed during those extensive debates over his proposal, specifically over the use of “a preferred means” rather than “the preferred means”.
He explained that “a” was chosen over “the” for two reasons:
1) The Game, Fish and Parks Dept. would never have supported the use of the word “the”, because, he explained, that would mean “no other could be included”.
Under language where “the preferred means” existed, he stated, Game, Fish, and Parks would not be able to, say, poison and kill off a group of highly contagious deer which posed a threat to the entire deer population in the state, should it prove necessary.
2) To assuage doubts of opponents of the measure in the Unicameral – some State Senators.
In addition, Senator Pirsch explained that “public hunting”, “public fishing”, etc., was written as such to protect the rights to hunt, fish, and harvest wildlife “by the general public”.
Senator Pirsch urged that, since there was an extensive legislative history on his proposal, any legal challenges to Amendment NO. 2 would result in the Nebraska Supreme Court’s review of that history, to conclude:
1) Public in this instance means the members of the public and their rights to hunt, fish, etc.
2) The difference between “a” and “the” in this instance would uphold those rights of the people, but not prohibit the Games, Fish, and Park Dept. from doing its job, when necessary.
While there is additional interesting information about my conversation with Senator Pirsch, those points relate more to the way our Unicameral has been operating for some time, and are not specifically relevant to Amendment No. 2, in substantive terms.
OUR ASSESSMENT OF SENATOR PIRSCH’S EXPLANATIONS:
Linda and I have gone over the language of Amendment No. 2 countless times. While people with a thorough understanding of the specificity of the English language can see a difference between…
“a preferred means”
“the preferred means”
I will remind readers that our our key concern about this difference, comes down to the simple fact that the State government will only have AMONG ALL OF THEIR CHOICES “a” preference regarding rights to hunt – it is not instructing that it be THE PRIMARY MEANS.
I reference once again, the example of the Army Corps of Engineers’ employment of the very same discretion in managing the Missouri River. Obviously, flood control should be #1, but no statutes require it. And in a tragically ironic twist, the Nebraska Game, Fish, and Parks Dept. webpage entitled “Where to Hunt” is advertising available hunting, on flooded-out lands that the U.S. Army Corps of Engineers has gone around purchasing. Incredible. A read of the rationale for these land purchases proves that no one has been held accountable for the flooding, and even worse, the discretionary powers which equate property rights with ten other priorities, continues unabated and unchallenged.
We cannot agree with Senator Pirsch’s assurances, and here is why:
- The Nebraska Supreme Court would not likely look for legislative intent in determining the meaning of “a preferred means” versus “the preferred means”, since the meaning is clear. That is what judges actually do in most cases (although not as consistently as they should) – they only work to interpret meaning when there is lack of clarity, and Senator Pirsch is well aware of that fact, because he thought it necessary to include it in his explanation to me.
- Senator Pirsch is an attorney himself, so, this necessarily means he either believes his language is vague to the extent that a Court would need to work at interpreting the meaning of his proposal – which indicates poor construction of a Constitutional Amendment – hadn’t considered the problem in depth, or he was just trying to reassure me with a presumption that I just don’t quite “get it” or weren’t capable of doing so.
- Senator Pirsch is mistaken that “a preferred means” was needed to protect the Game, Fish, and Parks Dept. ability to carry out necessary operations; the word preferred, in and of itself would have legally granted them the powers necessary. The definition of “prefer”:
tr.v. pre·ferred, pre·fer·ring, pre·fers
1. To choose or be in the habit of choosing as more desirable or as having more value: prefers coffee to tea.
a. To give priority or precedence to (a creditor).
b. To file, prosecute, or offer for consideration or resolution before a magistrate, court, or other legal authority: preferred the suit in a higher court.
While the use of “the preferred means” would ensure that Nebraskans’ rights were the first priority, Game, Fish, and Parks, could still defend an action it had to take, if challenged, based on the discretion granted them by the inclusion of the word “preferred”. In other words, contrary to the Game, Fish, and Parks Department’s contention, the preferred means does NOT signify the sole means.
- While there was lots of debate over Pirsch’s proposal (see list of transcripts, below), there wasn’t much discussion about this key problem, and, in fact, the transcripts reveal that Senator Pirsch didn’t squarely answer to challenges on the floor which were precisely the same as ours.
I hope readers understand that we would LOVE to support Amendment No. 2., for its relationship to the second amendment and other principles related to individual liberties. Considering that I just cooked fresh pheasant and dumplings for Sunday dinner just a week ago (the only reason there wasn’t a repeat is because two shots this Saturday were off the mark.), our position here has ZERO to do with lack of support for hunting. And you should see how many tackleboxes and fishing rods are sitting out in my garage…
And, I firmly believe that this is one of the important reasons for the 2nd Amendment…it’s NOT just for huntin’, folks…
It is, in fact, the commitment to the principles that these activities are NATURAL RIGHTS – inalienable, and adherence to originalism, that motivates our recommendation AGAINST Amendment No. 2.
While minute examination of legal language may make all of our eyes cross, it is a vitally important pursuit. Constitutional changes are not to be made lightly and they should be thoroughly scrutinized for their soundness before being approved.
Senator Pirsch should take his proposal back through the legislative process, and remove the over-weaning deference to the bureaucratic powers he embedded, or it will be entirely fruitless or could result in infringement of our rights.
I am heartily discouraged by the fact that Senator Pete Pirsch, an attorney, doesn’t understand an very important aspect of his duties as a State Senator:
It’s his and the other legislators jobs to determine the powers of the bureaucracy, not to seek support and approval from it. Bureaucratic agencies are the creatures of the Legislative Branch.
And this last thought…
We / I here at GiN could do what lots of politicians do…we could tell you to vote for Amendment No. 2 because we know it strikes a chord with conservatives, with gun lovers, etc., and because we know it is almost guaranteed to pass. We could recommend it so we could ingratiate ourselves to a State Senator, so we could be part of the “in crowd”, and we could avoid turning off people who think we’re just “difficult”.
Sorry, folks, that’s not who we are, that’s not what we do. We’re going to tell you the truth. Once upon time, that was considered a virtue.
Finally, while it is not necessary to be an attorney to refute Senator Pirsch’s rationale, do note that there has been one involved in examining this legislation. Although she is currently on a self-imposed hiatus to homeschool her two sons K-12, Linda has been a practicing attorney, and has even argued appeals before the Nebraska Supreme Court.