Baldwin v. Montana Fish and Game Comm'n
In Baldwin v. Montana Fish and Game Comm'n., 436 U.S. 371, 391, 98 S.Ct. 1852, 1864, 56 L.Ed.2d 354 (1978), the Court was faced with a challenge to Montana's elk hunting license scheme, which imposed substantially higher fees on non-residents.
The Court concluded:
"Appellants' interest in sharing this limited resource on more equal terms with Montana residents simply does not fall within the purview of the Privileges and Immunities Clause. Equality in access to Montana elk is not basic to the maintenance or well-being of the Union. Appellants do not and cannot contend that they are deprived of 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 non-resident's participation therein without similarly interfering with a resident's participation. Whatever rights or activities may be 'fundamental' under the Privileges and Immunities Clause, we are persuaded, and hold, that elk hunting by non-residents in Montana is not one of them." (Id., 436 U.S. at 388, 98 S.Ct. at 1862-63.)
In Baldwin, Justice Brennan had criticized the majority's inquiry into whether elk hunting was a "fundamental" right, and asserted that "our primary concern is the State's justification for its discrimination." Baldwin, supra, 436 U.S. at 402, 98 S.Ct. at 1870 (Brennan, J., dissenting).
Justice Brennan, writing for a unanimous court in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978), used, for the most part, the very analysis he advocated in dissent in Baldwin.
Hicklin did not, however, signal an abandonment of the "fundamental" right approach. In Hicklin, there was simply no need to make that inquiry. The Baldwin majority had explicitly stated that the "right" involved in Hicklin the right of a non-resident to earn a livelihood without being subject to unjustified discrimination was "fundamental." Baldwin, supra, 436 U.S. at 387, 98 S.Ct. at 1862.
Therefore, Hicklin is not inconsistent with Baldwin.