No, it's not unconstitutional. The part of the Constitution that says states must treat all citizens' 'privileges' equally only applies to really important things, like the right to have a job or own a house. Hunting for fun is a sport, not a basic right needed to survive. Since it's just recreation, Montana is allowed to give a better deal to its own residents, who help pay to protect the elk through taxes. The price difference is a reasonable way for the state to manage its wildlife.

Yes, this is unconstitutional. The court shouldn't be deciding whether hunting is 'important' or not. The real question is whether Montana has a good reason to charge outsiders so much more. Montana didn't prove that the huge price difference was necessary to protect the elk or cover extra costs. This is just unfair discrimination.

No, it's constitutional, and here's the main reason: a state has a special duty to take care of its wildlife for its own people. Think of Montana as the guardian of the elk for its citizens. Because of this special relationship, Montana can give its residents a better deal on hunting licenses for a public resource like elk. This doesn't mean a state could do this for buying things from a private store.

No, Montana's different elk hunting license prices don't break the Constitution's rules because hunting elk for fun isn't a super important right that the Constitution says has to be the same for people from all states. Montana has good reasons for charging more, like protecting the elk and paying for the work to take care of them. It's okay for states to sometimes give their own people first dibs on using the state's natural resources. The Constitution only says states can't treat out-of-staters differently in ways that hurt the whole country sticking together.

The main opinion is wrong to focus on whether elk hunting is a "super important" right. What matters is whether Montana has a really good reason for treating out-of-staters worse. Montana hasn't shown a good enough reason besides them just being from other states. Their excuses about money and protecting elk don't hold up. The main opinion is bringing back an old, rejected idea that states "own" the animals in their borders and can do whatever they want with them. I think Montana's unfair rules do break the Constitution.

I agree with the main opinion but want to point out that Montana has a special interest in its elk. The old idea that states "own" the animals isn't quite right, but it still shows that states have a real interest in saving their natural resources for their own people. Montana can give its people first dibs on elk hunting without breaking the Constitution. But this idea only works for natural resources like animals, not other fun stuff sold by businesses.

"Only with respect to those `privileges' and `immunities' bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally. "

Whatever rights or activities may be "fundamental" under the Privileges and Immunities Clause, we are persuaded, and hold, that elk hunting by nonresidents in Montana is not one of them.

—a means of a livelihood by the system or of access to any part of the State to which they may seek to travel. We do not decide the full range of activities that are sufficiently basic to the livelihood of the Nation that the States may not interfere with a nonresident's participation therein without similarly interfering with a resident's participation. Whatever rights or activities may …

—upholding Montana's higher nonresident elk hunting license fees to compensate the State for conservation expenditures from taxes which only residents pay

Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single union of those States. Only with respect to those `privileges' and `immunities' bearing upon the vitality of the …

"Rather,... the Privileges and Immunities Clause protects only those privileges and immunities that are `fundamental

And a State's interest in its wildlife and other resources must yield when, without reason, it interferes with a nonresident's right to pursue a livelihood in a State other than his own, a right that is protected by Privileges and Immunities Clause.

The Supreme Court has pointed out that the privileges and immunities clause does not prohibit states from ever using state citizenship or residency to distinguish among persons.

Similarly, if the State owned and operated a park or recreational facility, it would be allowed to charge differential fees for in state and out of state users of the resource.

No. Montana's hunting license scheme does not violate the Privileges and Immunities Clause or the Equal Protection Clause. The Privileges and Immunities Clause only protects those 'privileges' and 'immunities' that are fundamental to the vitality of the Nation as a single entity. Elk hunting is a recreational sport, not a means to a nonresident's livelihood, and thus does not fall within the purview of the Privileges and Immunities Clause. Under the Equal Protection Clause, the licensing scheme is subject only to rational basis review, and the fee disparity is a rational means to achieve the legitimate state purpose of preserving a finite resource and allocating costs, given that residents contribute to the state's economy and conservation efforts through taxes and other means.

Yes. Montana's discriminatory licensing scheme violates the Privileges and Immunities Clause. The majority errs by focusing on whether a given right is 'fundamental'; the proper analysis under modern precedent like Toomer v. Witsell is whether the state's discrimination against nonresidents is supported by a substantial reason. Montana has failed to demonstrate that nonresidents are a peculiar source of the problem it seeks to address or that the 7.5-to-1 fee differential bears a substantial relation to any problem they present. The state provided no valid cost-justification for the discrepancy, making it an unconstitutional form of discrimination.

No. The Montana licensing scheme is constitutional. While the legal doctrine that a state 'owns' the wildlife within its borders is an anachronism, it correctly signifies the state's special interest in regulating and preserving its wildlife for the benefit of its citizens. This special interest in its natural resources allows Montana to prefer its own residents in granting access to its elk population without offending the Privileges and Immunities Clause. This holding is limited to public resources and does not permit discrimination in the purchase of private goods and services, which are protected by the Clause.

No, Montana's elk hunting license fee scheme does not violate the Privileges and Immunities Clause or the Equal Protection Clause because elk hunting is a recreational sport, not a means to a livelihood, and is therefore not a fundamental privilege protected by the Privileges and Immunities Clause. The fee differential is rationally related to the legitimate state interests of conservation and fair cost allocation for wildlife management. Some distinctions between residents and nonresidents are permissible because they reflect the fact that states may prefer their own citizens in granting access to their natural resources. Only distinctions that hinder the vitality of the nation as a single entity are prohibited by the Privileges and Immunities Clause.

The majority errs by focusing on whether elk hunting is a "fundamental" privilege. The proper inquiry under the Privileges and Immunities Clause is whether the state's discrimination against nonresidents is properly justified. Montana has not shown a substantial reason for the discrimination beyond the fact that they are nonresidents. The purported cost and conservation justifications are unsupported by the evidence. The majority's resurrection of the notion that states "own" the wildlife within their borders and can therefore do as they please is a repudiated 19th century legal fiction. I would hold that Montana's discriminatory scheme violates the Privileges and Immunities Clause.

I join the majority but write separately to emphasize Montana's special interest in its elk population. The "ownership" doctrine, while a legal anachronism, still reflects a state's legitimate interest in preserving access to its natural resources for its citizens. Montana may grant residents preferred access to elk without violating the Privileges and Immunities Clause. However, this rationale is limited to state natural resources and would not permit discrimination in access to other recreational activities offered by private parties.

Baldwin et al. v. Fish and Game Commission of Montana et al.

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