14th Amendment: "privileges and immunities"
Section one of the 14th Amendment provides:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
For me, the meaning is straightforward. Background: the infamous Dred Scott case of 1857 had ruled that free blacks could never be US citizens. The opinion repeated uses "privileges and immunities" to describe citizen's rights. It begins,
"The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution."
The opinion argues that the creators of the United States could not have intended blacks to be citizens, because that would give them the "privileges and immunities" of citizens. And in listng those P&I the opinion goes right down the bill of rights, including the Second Amendment:
More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
Sounds like a slam-dunk. The 14th Amendment had a clear target: Dred Scott. By providing that anyone born or naturalized in the US was a citizen, it eliminated that decision's racial barrier. It also changed in a more complex way the concept of citizenship: national citizenship became primary (Dred Scott had also said that a person could be a citizen of a state without being a citizen of the United States: no more would that be the case). And it forbade States to deny the "privileges and immunities" of US citizenship.
From where else but their target Dred Scott would the drafters of the 14th have taken "privileges and immunities?" Dred Scott says the P&I are the Bill of Rights and other similar liberties.
Of course, the Supreme Court had to have its say...
The Supreme Court was then populated with what we might term Andrew Johnson Republicans, as opposed to the Radical Republicans who had been the main supporters of the 14th. In the Slaughterhouse Cases and the Cruikshank decision, the Supreme Court basically made the 14th Amendment's P&I clause meaningless. The rulings were, I believe, based upon a word-game. The reasoning goes like this:
1. There are privileges and immunities of State, and P&I of Federal, citizenship.
2. P&I of Federal citizenship must be privileges a person did not have before there was a Federal government. Otherwise, what is "Federal" about them?
3. (Pick a right--freedom of speech, association, arms) existed before there was a Federal government, because it is a form of natural right and exists in all free governments. Thus it is not a Federal P&I, and if you want protection of it, talk to your State government.
How many trucks can we drive through that reasoning? Why do Federal and State P&I have to be distinct? What precludes a thing from being a privilege and immunity of Federal citizenship and of state citizenship? If a right is a P&I under all free governments, and the Federal government is a free government, how is it not a Federal P&I? [This is without taking account of the legislative history, so well compiled by Prof. Michael Kent Curtis in his book No State Shall Abridge, showing that the framers of the 14th clearly saw the bill of rights liberties as among the Federal P&I].
Anyway, the P&I clause was knocked off as a means for "incorporating" the Federal bill of rights liberties into the 14th Amendment, and thus making them applicable to the States. Decades later, the Supreme Court began "due process" incorporation, under the separate 14th Amendment provision that no State may deprive a person of due process of law. The Court gradually ruled that one bill of rights freedom and then another were incorporated, were rights that could not be denied without denying "due process of law."
This would mean that "due process" would be denied even if a person was given, well, due "process." And it has no particular logical basis, and no basis in statutory history. Further, as Prof. Curtis points out, the one right which was most apt to be cited as a requirement of "due process" in pre-14th amendment legal texts was ... the right to a grand jury indictment to begin a felony case ... which is, with the right to arms, one of the bill of rights liberties NOT yet held to be within the due process clause.
As the great political commentator Mel Brooks observes, in "History of the World, Part One," "It's nice to be king!"