Would incorporation of a right through the Privileges or Immunities Clause apply to non citizens?

Question

Justice Thomas in his concurring opinion in McDonald v. City of Chicago suggested incorporation of the Second Amendment should be through the Privileges or Immunities Clause of the Fourteenth Amendment. Justice Thomas wrote “the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.”

Similarly, in his concurring opinion in Timbs v. Indiana, Justice Thomas wrote “ I would hold that the right to be free from excessive fines is one of the ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.”

Given that the Privileges or Immunities Clause states that it only applies to citizens (No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States), would a right incorporated through the Privileges or Immunities Clause apply to non-citizens?

Answer 1

Given that the Privileges or Immunities Clause states that it only applies to citizens (No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States), would a right incorporated through the Privileges or Immunities Clause apply to non-citizens?

Under this theory the Second Amendment right and any other right incorporated through the 14th Amendment privileges and immunities clause would not protect non-citizens.

This said, due to the Slaughter-House cases (1873) and some related cases (which incidentally were probably decided contrary to the intent of the drafters of the 14th Amendment by conservative judges in office at the time), the privileges and immunities clause of the 14th Amendment is almost a nullity since it has been held to apply to only privileges and immunities that are specifically contingent upon United States citizenship (e.g. the right to enter the U.S. from abroad, and the right to vote in federal elections).

Since the process of incorporating the Bill of Rights to apply against the states began historically after the Slaughter-House cases were decided, the U.S. Supreme Court instead turned to the due process clause of the 14th Amendment to make most provisions of the Bill of Rights applicable to U.S. states.

Justice Thomas is an extreme outlier in judicial opinion regarding the notion of incorporating any of the provisions of the Bill of Rights to apply to the states via the privileges and immunities clause of the 14th Amendment. No other justices on the U.S. Supreme Court and very few legal scholars (and none who are particular notable) support this legal theory.

Liberal legal scholars have been reluctant to suggest incorporation through the 14th Amendment privileges and immunities clause because they are aware that it would only apply to U.S. citizens, and also because they think there is merit in the underlying concept of substantive due process behind incorporating the Bill of Rights (selectively) to apply to state and local governments through the 14th Amendment due process clause (which also provides a theory that makes sense concerning which Bill of Rights protections should and should not be incorporated).

Conservative legal scholars have more often been skeptical of the entire concept of incorporating the Bill of Rights to apply against state and local government, even though this is a well settled fait accompli because there are provisions such as the establishment clause of the 1st Amendment and the 4th and 6th Amendment exclusionary rules, which they disagree should be universally applied.

The reason that Justice Thomas is interested in this alternative route to incorporation is that he disfavors the concept of "substantive due process" that was behind the Roe v. Wade decision and a variety of unenumerated rights (e.g. the right to contraception) that arise from a substantive due process analysis. But, one can't entirely abandon substantive due process as a legal doctrine without also making all of the provisions of the Bill of Rights inapplicable to state and local governments, which is a bridge too far even for an extremely conservative justice like Justice Thomas.

Answer 2

That is unclear. The Privileges or Immunities clause might have been a more logical (and perhaps faster) route to incorporation of the Bill of Rights against the states. But it was drastically (and in my view mistakenly) limited by several early Supreme Court decisions, particularly the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) Note the date, this was before any of the "selective incorporation" cases. In that case the Court held that the Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only protects the legal rights that are associated with federal U.S. citizenship, not those that pertain to state citizenship, and it limited even those rights to ones created by the constitution itself. The Court held that protecting people from state government actions was not the Privileges or Immunities Clause's purpose, and that the clause was never meant to be a basis on which courts could strike down state laws.

The Slaughter-House Cases are npt well thought of among legal scholars today, and it is not at all clear that they are still good law. But because of that decision, incorporation and restrictions on state action developed via the due process clause instead. Justice Thomas appears to be alone among current Court members, and joined by only a few conservative legal scholars. Such a change would require a massive reinterpretation of the Constitution, and would upset much case law, but would in many cases make little no difference to the outcome. Thus it seems unlikely that the Court will follow that route.

The Privileges or Immunities Clause is, on its face,limited to "citizens". But one think it has been held to protect even in the Slaughter-House Cases is the right to travel within the US, and that has been held to be a right of non-citizens as well as citizens. So if the effects of the clause were expanded by court decision, it might or might not be extended to non-citizens.