Privileges or Immunities Clause

The Privileges or Immunities Clause, which protects the privileges and immunities of national citizenship from interference by the States, was patterned after the Privileges and Immunities Clause of Article IV, which protects the privileges and immunities of state citizenship from interference by other states.[72] In the Slaughter-House Cases (1873),[72] the Supreme Court concluded that the Constitution recognized two separate types of citizenship—"national citizenship" and "state citizenship"—and the Court held that the Privileges or Immunities Clause prohibits states from interfering only with privileges and immunities possessed by virtue of national citizenship.[72][73] The Court concluded that the privileges and immunities of national citizenship included only those rights that "owe their existence to the Federal government, its National character, its Constitution, or its laws".[72] The Court recognized few such rights, including access to seaports and navigable waterways, the right to run for federal office, the protection of the federal government while on the high seas or in the jurisdiction of a foreign country, the right to travel to the seat of government, the right to peaceably assemble and petition the government, the privilege of the writ of habeas corpus, and the right to participate in the government's administration.[72][73] This decision has not been over ruled and has been specifically reaffirmed several times.[74] Largely as a result of the narrow nessof the Slaughter-House opinion, this clause subsequently lay dormant for well over a century.[75]

In Saenz v. Roe (1999),[76] the Court ruled that a component of the "right to travel" is protected by the Privileges or Immunities Clause:

Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause "is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State". (emphasis added)

Justice Miller actually wrote in the Slaughter-House Cases that the right to become a citizen of a state(by residing in that state) "is conferred by the very article under consideration" (emphasis added), rather than by the "clause" under consideration.[72][77]

In McDonald v. Chicago (2010), Justice Clarence Thomas, while concurring with the majority in incorporating the Second Amendment against the states, declared that he reached this conclusion through the Privileges or Immunities Clause instead of the Due Process Clause. Randy Barnett has referred toJustice Thomas's concurring opinion as a "complete restoration" of the Privileges or Immunities Clause.[78]