I'd rather fight my battles in court so we all win... like the Arkansas hunters I was talking about above:
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An overbroad statute is one that is designed to punish conduct which the state may rightfully punish, but which includes within its sweep constitutionally protected conduct.  McDougal v. State, 324 Ark. 354, 359-360, 922 S.W.2d 323 (1996), citing 4 R. Rotunda & J. Novak, Treatise on Constitutional Law, � 20.8 (2d ed. 1992).   The Commission's rule, as amended, essentially shifts the burden to non-hunters who possess loaded or uncased firearms on city, county, state, or federally maintained roads or rights-of-way, to prove that he or she is not engaged in the prohibited act of road hunting.   When examining amended rule 18.04, we conclude that it may include within its sweep innocent and legitimate conduct.   For example, it is an affirmative defense to the charge of carrying a weapon that the person charged was carrying the weapon upon a journey.   See Ark.Code Ann. � 5-73-120(c)(4) (Supp.1995).   The amended rule is thus overbroad, and exceeds the Commission's authority granted under Amendment 35 to regulate the manner of taking game.
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The appellees maintain, and the trial court agreed, that amended code 18.04 is unconstitutionally overbroad because its wording is so inclusive that it may affect the rights of non-hunters 1 who possess loaded or uncased firearms on city, county, state, or federally-maintained roads or rights-of-way.   In turn, the Commission urges that amended code 18.04 bears a rational relationship to the legitimate objective of suppressing illegal road hunting, an activity which, pursuant to Amendment 35 of the Arkansas Constitution, the Commission has the authority to regulate.   According to the Commission, the fact that some persons who have no intention of hunting may travel the highways during deer season with loaded or uncased firearms does not undermine the rule's legitimate sweep.
 We agree that the Commission, under Amendment 35, has plenary authority over the �control, management, restoration, conservation and regulation of birds, fish, game and wildlife resources of the State.�   Section 8 of Amendment 35 also grants the Commission �the exclusive power and authority to regulate the manner of taking game, to regulate seasons, and to fix penalties for violation of the regulations.�   However, while we have said that t he Commission has broad discretion in carrying out its powers, see Chaffin v. Ark. Game & Fish Comm'n, 296 Ark. 431, 757 S.W.2d 950 (1988), its discretion is not unfettered.   The Commission's power to regulate the manner of taking game certainly does not translate into a general power to regulate the general possession of all firearms on city, county, state, or federally maintained roads or rights-of-way.
