On the Monday before this Fourth of July, Supreme Court Justice Clarence Thomas issued a concurring opinion in McDonald v. Chicago, the case ruling that the Second Amendment right to keep and bear arms applies to the states. Unlike his four concurring colleagues, Justice Thomas based his decision not on the due process clause of the Fourteenth Amendment but on its privileges and immunities clause, a provision that had been rendered largely inoperative by the Supreme Court in the Slaughterhouse Cases in 1873.
“No state,” reads the Fourteenth Amendment, “shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It is interesting to think of the rights proclaimed self-evident by the Declaration of Independence and set out in the Constitution in those terms. I believe we ordinarily think of those rights as immunities. We are free to speak and write, to keep and bear arms, to be immune from unreasonable searches and seizures, to be safeguarded against deprivation of life, liberty, and property without due process of law. Government’s power is limited and we are immune from interference in those particular respects.
But I believe that it is even more fitting and proper to think of citizenship in terms of privileges. Those of us born as United States citizens or naturalized as such are privileged to partake of a heritage which not only gives us rights but responsibilities. We are part of a nation of mass prosperity and economic creativity, a nation that has led the world (despite current problems) into the broad sunlit uplands in which hundreds of millions have been able to lift themselves from poverty into independence and affluence. As American citizens, we have a responsibility to build on the work done by those before us to ensure that this heritage is forwarded, not forfeited.
We also live in a nation that has important responsibilities in the world. The Constitution was written by representatives of the Atlantic seaboard states for a nation of 3 million people; we are a continental nation of 310 million now, a nation with the greatest military might ever assembled. George Washington hoped that we would be an example to the world, and we have been. But in time we have become something very much more: a liberator of millions, a source of hope for the persecuted, and a focus of fear for their oppressors. Again, we have a responsibility to further the work of the giants on whose shoulders we are lucky enough to stand.
Justice Thomas’s decision may in time revive the long-dormant privileges and immunities clause. In the meantime, we need to appreciate not only our immunities but our privileges as citizens of the United States.