Both questions.
You first ask whether this provision of the WCO violates an individual's right to bear arms as established by Const 1963, art 1, § 6.
Section 6 states: "Every person has a right to keep and bear arms for the defense of himself and the state." Const 1963, art 1, § 6. It was preceded by Const 1908, art 2, § 5, which provided: "Every person has a right to bear arms for the defense of himself and the state." Because of the similarity of the provisions and since the Convention Comment to Const 1963, art 1, § 6 indicates no intent to reduce the protection of the right to bear arms granted by the 1908 Constitution, the rights guaranteed under both provisions have been viewed as identical. People v Swint, 225 Mich App 353, 359, n 2; 572 NW 2d 666 (1997).
Const 1963, art 1, § 6 is similar to the Second Amendment of the United States Constitution, which provides that "the right of the people to keep and bear Arms, shall not be infringed." In McDonald v Chicago, 561 US ___; 130 S Ct 3020, 3042; 177 L Ed 2d 894, 921 (2010), the United States Supreme Court confirmed that this provision provides a "fundamental" and "basic" right of self defense, and that it is applicable to the States by virtue of the Fourteenth Amendment of the United States Constitution:
In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.
In reaching that conclusion, however, the Supreme Court recognized that the right was not without limits. Quoting from its decision in District of Columbia v Heller, 554 US ___; 128 S Ct 2783; 171 L Ed 2d 637 (2008), the McDonald Court stated:
It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." 554 US, at ___; 128 S Ct 2783; 171 L Ed 2d at 678. We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as "prohibitions on the possession of firearms by felons and the mentally ill," "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id., at ___; 128 S Ct 2783; 171 L Ed 2d at 678. We repeat those assurances here.
Consistent with McDonald, the Michigan Supreme Court construed former Const 1908, art 2, § 5, which created a right to bear arms for specific purposes, as being subject to the reasonable exercise of the State's police power. In People v Brown, 253 Mich 537, 539-541; 235 NW 245 (1931) (citations omitted), the Court observed:
It is generally recognized that the constitutional declaration, in both Federal and State constitutions, of the right to bear arms had its origin in the fear of the American colonists of a standing army and its use to oppress the people, and in their attachment to a militia composed of all able-bodied men. Probably the necessity of self-protection in a frontier society also was a factor.
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The protection of the Constitution is not limited to militiamen nor military purposes, in terms, but extends to "every person" to bear arms for the "defense of himself" as well as of the State. This includes the right of a foreigner to possess a revolver for the legitimate defense of his person and property, subject, however, to the valid exercise of the police power of the State to regulate the carrying of firearms. [Emphasis added.]
More recently, the Court of Appeals in People v Swint, recognizing the State's police power, upheld as constitutional under Const 1963, art 1, § 6, a statute that restricted the right of felons to possess firearms.
Applying the Brown and Swint Courts' reasoning to the WCO's prohibition on possessing certain types of firearms and ammunition in the field before the opening day of deer season, the restriction does not violate Const 1963, art 1, § 6. The WCO imposes a restriction of short duration that only applies to a limited number of specifically described firearms and ammunition, which are typically used to hunt deer. A person subject to section 2.1(3)
may otherwise possess a handgun for self defense.
Consequently, the WCO would not violate the Second Amendment as interpreted by the United States Supreme Court in Heller and McDonald. As there is a legitimate police power justification for the WCO – the prevention of poaching and the assurance of a level playing field for all hunters awaiting opening day – and it only places reasonable limits on the right to carry firearms, it is not unconstitutional.
It is my opinion, therefore, that Const 1963, art 1, § 6 provides a constitutional right in Michigan to bear firearms for self defense, subject to reasonable regulation by the State. The firearm and ammunition restrictions set forth in Wildlife Conservation Order section 2.1(3) dealing with the possession of a rifle or shotgun in areas frequented by deer during the five-day period immediately preceding the beginning of firearm deer season are a reasonable exercise of the State's police power, and do not violate the right to bear arms established by Const 1963, art 1 § 6.
You next ask whether the Legislature may "rescind" section 2.1(3) of the WCO by legislation. It is a general rule of law that: "An agency has no inherent power. Any authority it may have is vested by the Legislature, in statutes, or by the Constitution." Deleeuw v Bd of State Canvassers, 263 Mich App 497, 500; 688 NW2d 847 (2004), quoting Belanger & Sons, Inc v Dep't of State, 176 Mich App 59, 62-63; 438 NW2d 885 (1989).
The Commission's authority to adopt section 2.1(3) is not derived from the Michigan Constitution. The Commission was vested with exclusive authority to regulate the taking of game by the enactment of 1996 PA 377, which was submitted by the Legislature to the electors for vote under the referendum process provided for in Const 1963, art 4, § 34. It was approved by a majority of the electors on November 5, 1996. While a citizen initiated law under art 2, § 9 of the Constitution expressly requires the votes of three-fourths of the members of each house of the legislature to amend or repeal it, art 4, § 34 lacks that requirement and thus laws adopted through referendum may be amended at any time by a simple majority vote of the Legislature:
No law initiated or adopted by the people shall be subject to the veto power of the governor, and no law adopted by the people at the polls under the initiative provisions of this section shall be amended or repealed, except by a vote of the electors unless otherwise provided in the initiative measure or by three-fourths of the members elected to and serving in each house of the legislature. Laws approved by the people under the referendum provision of this section may be amended by the legislature at any subsequent session thereof. [Const 1963, art 2, § 9.]
OAG, 1997-1998, No 6990, p 161 (August 10, 1998), addressed the Legislature's power to make, amend or repeal a law:
Const 1963, art 4, § 1, provides that: "The legislative power of the State of Michigan is vested in a senate and a house of representatives." This legislative power has been described as plenary and equivalent to the legislative powers asserted by the Parliament of the United Kingdom, except so far as the people of this state have limited it. Harsha v Detroit, 261 Mich 586, 590; 246 NW 849 (1933); Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311; 254 NW2d 544 (1977); and Sessa v State Treasurer, 117 Mich App 46, 54; 323 NW2d 586 (1982).
The Legislature has plenary authority, except where specifically limited by the Constitution. The WCO was issued by the Commission under authority granted it by the Legislature and the voters through the referendum process. That authority can be altered or repealed entirely by the Legislature and the Governor through the process for passage of a bill.
It is my opinion, therefore, that the Legislature may, by statute, amend or repeal the firearm and ammunition restrictions set forth in Wildlife Conservation Order section 2.1 (3).
MIKE COX
Attorney General
