Randy Barnett in the Wall Street Journal (subscription site) notes that while four of the Supreme Court’s five-justice majority upheld the right to keep and bear arms against the states on Fourteenth Amendment due-process grounds, Justice Clarence Thomas’s “concurring opinion rested solely on the Privileges or Immunities Clause. While agreeing ‘with the Court that the Second Amendment is fully applicable to the States,’ he did so ‘because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.’”
I don’t cotton to that word privilege — it’s not the Bill of Privileges — and don’t believe rights are just for American citizens, but it should be pointed out that word comes from the Fourteenth Amendment’s Privileges or Immunities Clause:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
In Barnett’s words, “Justice Thomas’s analysis summarizes and reflects a consensus of legal scholarship that the Privileges or Immunities Clause does protect at least the rights enumerated in the Bill of Rights against state interference.”
We don’t hear much about that clause, especially from the courts. Why not? Writes Barnett:
The Privileges or Immunities Clause has been virtually a dead letter since 1873, when the court in The Slaughter-House Cases limited its scope to rights of a purely national scope, such as the right to access a foreign embassy or to be protected when traveling on the high seas. It was a preposterous interpretation—these were hardly the rights congressional Republicans in the aftermath of the Civil War were most concerned to protect in the wake of the terrible abuses of free blacks and white unionists by Southern states.
So if the clause really means “rights” and if it’s making a comeback, then I guess we’re entitled to sigh of relief. Thomas says “this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.”