dissenting.
Far more troublesome than the Court’s narrow holding- — -elk hunting in Montana is not a privilege or immunity entitled to protection under Art. IV, § 2, cl. 1, of the Constitution — -is the rationale of the holding that Montana’s elk-hunting licensing scheme passes constitutional muster. The Court concludes that because elk hunting is not a “basic and essential activit[y], interference with which would frustrate the purposes of the formation of the Union,” ante, at 387, the Privileges and Immunities Clause of Art. IV, § 2 — “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States” — does not prevent Montana from irrationally, wantonly, and even invidiously discriminating against nonresidents seeking to enjoy natural treasures it alone among the 50 States possesses. I cannot agree that the Privileges and Immunities Clause is so impotent a guarantee that such discrimination remains wholly beyond the purview of that provision.
*395I
It is true that because the Clause has not often been the subject of litigation before this Court, the precise scope of the protection it affords the citizens of each St^te in their sister States remains to be defined. Much of the uncertainty is, no doubt, a product of Mr. Justice Washington’s exposition of its scope in Corfield v. Coryell, 6 F. Cas. 546, 551 (No. 3,230) (CC ED Pa. 1825), where he observed
“[W]hat are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.” (Emphasis added.)
Among these “fundamental” rights he included “[protection by the government; . . . [t]he right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state.” Id., at 551-552. These rights, only the last of which was framed in terms of discriminatory treatment, were to be enjoyed “by the citizens of each state, in every other state . . . .” Id., at 552. As both the italicized language and the list of rights designed as falling within the compass of Art. IV, § 2, cl. 1, make clear, Mr. Justice Washington believed that the Clause was designed to guarantee certain “fundamental” rights to all United States citizens, regardless of the rights afforded by a State to its own *396citizens. In Hague v. CIO, 307 U. S. 496, 511 (1939), Mr. Justice Roberts so characterized Mr. Justice Washington’s view: “At one time it was thought that [Art. IV, § 2, cl. 1] recognized a group of rights which, according to the jurisprudence of the day, were classed as ‘natural rights’; and that the purpose of the section was to create rights of citizens of the United States by guaranteeing the citizens of every State the recognition of this group of rights by every other State. Such was the view of Justice Washington.”
That Mr. Justice Washington thought Art. IV, § 2, cl. 1, to embody a guarantee of “natural rights” is not surprising. It revealed his preference for that determination of the controversy raging in his time over the significance of “natural rights” in constitutional adjudication.
“Behind the 1825 Corfield opinion lay the nineteenth century controversy over the status of ‘natural rights’ in constitutional litigation. Some judges had supposed an inherent limitation on state and federal legislation that compelled courts to strike down any law ‘contrary to the first great principles of the social compact.’ They were the proponents of the natural rights doctrine which, without specific constitutional moorings, posited ‘certain vital principles in our free republican governments, which will determine and overrule an apparent abuse of legislative powers.’
“Corfield can be understood as an attempt to import the natural rights doctrine into the Constitution by way of the privileges and immunities clause of article IV. By attaching the fundamental rights of state citizenship to the privileges and immunities clause, Justice Washington would have created federal judicial protection against state encroachment upon the ‘natural rights’ of citizens.” L. Tribe, American Constitutional Law 405-406 (1978) (footnotes omitted).
What is surprising, however, is the extent to which Cor field’s *397view of the Clause as protecting against governmental encroachment upon “natural rights” continued to influence interpretation of the Clause1 even after Mr. Justice Washington’s view was seemingly discarded in Paul v. Virginia, 8 Wall. 168 (1869), and replaced by the view that the measure of the rights secured to nonresidents2 was the extent of the rights afforded by a State to its own citizens. Paul announced that “[i]t was undoubtedly the object of the clause ... to place the citizens of each State upon the same footing with citizens of other States, so jar as the advantages resulting from citizenship in those States are concerned.” Id., at 180 (emphasis added). But during the 79 years between Paul and our decision in Toomer v. Witsell, 334 U. S. 385 (1948), Art. IV, § 2, cl. 1, was given an anomalous and unduly restrictive scope. Mr. Justice Washington’s expansive interpretation of “privileges and immunities” as broadly insuring a host of rights against all government interference was superimposed on Paul’s conception of the Clause as prohibiting a State from unjustifiably discriminating against nonresidents — a view of Art. IV, § 2, cl. 1, that I think correct — with the result that the Clause’s guarantee was held to prohibit a State from denying to citizens of other States only those “fundamental” rights that it guaranteed to its own citizens. Cf. Minor v. Happersett, 21 Wall. 162, 174 (1875). Yet because nonresidents could present special problems for a State in the administration of its laws even where rights thought to be “fundamental” were involved, this conception of Art. IV, § 2, cl. 1, born of the commingling of two disparate views of the Clause that *398were never meant to mate, proved difficult of rigid application. Thus, although Mr. Justice Washington listed the right “to institute and maintain actions of any kind in the courts of the state” as one of the “fundamental” rights within the ambit of Art. IV, § 2, cl. 1, Corfield v. Coryell, supra, at 552, this Court upheld state statutes that denied nonresidents precisely the same access to state courts as was guaranteed residents. Chemung Canal Bank v. Lowery, 93 U. S. 72 (1876), for example, upheld a Wisconsin statute that tolled the statute of limitations on a cause of action against a defendant absent from the State only when the plaintiff was a Wisconsin resident; the ground was that “[t]here is, in fact, a valid reason for the discrimination.” Id., at 77.3 Similarly, Canadian Northern R. Co. v. Eggen, 252 U. S. 553 (1920), sanctioned a Minnesota provision that allowed only citizens of that State to sue in state court on a cause of action arising out of the State that would have been barred by the statute of limitations in the State where the cause of action arose. The Court found that such a statute did not, in the words of Blake v. McClung, 172 U. S. 239, 256 (1898), “ ‘materially interfere] with the enjoyment by citizens of each State of the privileges and immunities secured by the Constitution to citizens of the several States.’ ” Canadian Northern R. Co. v. Eggen, supra, at 562.
Mr. Justice Roberts’ analysis of the Privileges and Immunities Clause of Art. IV, § 2, in Hague v. CIO, supra, was the first noteworthy modern pronouncement on the Clause from *399this Court. Not only did Mr. Justice Roberts recognize that Corfield’s view of the Privileges and Immunities Clause might, and should be, properly interred as the product of a bygone era, but also he went on to emphasize the interpretation of the scope of the Clause proposed in Paul v. Virginia, supra, namely, that “[t]he section, in effect, prevents a State from discriminating against citizens of other States in favor of its own.” 307 U. S., at 511. In singling out this passage as one of “three general comments [on the Clause] that deserve mention,” ante, at 380, the Court acknowledges the significance of Mr. Justice Roberts’ statement, but, with all respect, errs in not also appreciating that the Roberts statement signaled the complete demise of the Court’s acceptance of Corfield’s definition of the type of rights encompassed by the phrase “privileges and immunities.” No longer would that definition be controlling, or even relevant, in evaluating whether the discrimination visited by a State on nonresidents vis-a-vis its own citizens passed constitutional muster.
Less than a decade after Hague, Toomer v. Witsell, supra, embraced and applied the Roberts interpretation of the Clause. In Toomer, a South Carolina statute that required nonresidents to pay a fee 100 times greater than that paid by residents for a license to shrimp commercially in the three-mile maritime belt off the coast of that State was held to be viola-tive of the Clause. After stating that the Clause “was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy,” 334 U. S., at 395, the Court set out the standard against which a State’s differential treatment of nonresidents would be evaluated.
“Like many other constitutional provisions, the privileges and immunities clause is not an absolute. It does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other *400States. But it does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it. Thus the inquiry ,in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relation to them. The inquiry must also, of course, be conducted with due regard for the principle that the States should have considerable leeway in analyzing local evils and in prescribing appropriate cures.” Id., at 396 (emphasis added) (footnote omitted).
Unlike the relatively minimal burden of rationality South Carolina would have had to satisfy in defending a law not infringing on a “fundamental” interest against an equal protection attack, see Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976), the State could not meet the plain tiffs’ privileges and immunities challenge simply by asserting that the discrimination was a rational means for fostering a legitimate state interest. Instead, even though an important state objective— conservation — was at stake, Toomer held that a classification based on the fact of noncitizenship was constitutionally infirm “unless there is something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed.” 334 U. S., at 398. Moreover, even where the problem the State is attempting to remedy is linked to the presence or activity of nonresidents in the State, the Clause requires that there be “a reasonable relationship between the danger represented by non-citizens, as a class, and the . . . discrimination practiced upon them.” Id., at 399.
Toomer was followed in Mullaney v. Anderson, 342 U. S. 415 (1952). In Mullaney, the scheme employed by the Territorial Legislature of Alaska for the licensing of commercial fishermen in territorial waters, which imposed a $5 license fee on resident fishermen and a $50 fee on nonresidents, was found invalid under the Clause. Although the Court reaffirmed its observation in Toomer that a State may “charge non-residents a *401differential which would merely compensate the State for any added enforcement burden they may impose or for any conservation expenditures from taxes which only residents pay/’ 342 U. S., at 417, the Court found that Alaska’s mere assertion of these justifications was insufficient to sustain the fee differential in licensing in the face of evidence that, in the case under review, the justifications had no basis in fact.
Neither Toomer nor Mullaney cited Corfield or discussed whether commercial fishing was the type of “fundamental” right entitled to protection under Mr. Justice Washington’s view of the Privileges and Immunities Clause. Although the Court in Toomer did “hold that commercial shrimping in the marginal sea, like other common callings, is within the privileges and immunities clause,” 334 U. S., at 403, its statement to this effect was conclusory and clearly secondary to its extensive analysis of whether South Carolina’s discrimination against nonresidents was properly justified. The State’s justification for its discrimination against nonresidents was also the focus of the privileges and immunities analysis in Doe v. Bolton, 410 U. S. 179 (1973), which summarily added “medical services” to the panoply of privileges protected by the Clause and held invalid a Georgia law permitting only Georgia residents to obtain abortions within that State.4 It is true that Austin v. New Hampshire, 420 U. S. 656 (1975), cited Corfield for the proposition that discriminatory taxation of the nonresident was one of the evils the Clause was designed to protect against; but “an exemption from higher taxes” was the one privileges and immunities right that Mr. Justice Washington framed in terms of discriminatory treatment. As in Toomer, Mullaney, and Bolton, the Court’s *402principal concern in Austin was the classification itself — the fact that the discrimination hinged on the status of nonresidency.
I think the time has come to confirm explicitly that which has been implicit in our modern privileges and immunities decisions, namely that an inquiry into whether a given right is “fundamental” has no place in our analysis of whether a State’s discrimination against nonresidents — who “are not represented in the [discriminating] State’s legislative halls,” Austin v. New Hampshire, supra, at 662—violates the. Clause. Rather, our primary concern is the State’s justification for its discrimination. Drawing from the principles announced in Toomer and Mullaney, a State’s discrimination against nonresidents is permissible where (1) the presence or activity of nonresidents is the source or cause of the problem or effect with which the State seeks to deal, and (2) the discrimination practiced against nonresidents bears a substantial relation to the problem they present. Although a State has no burden to prove that its laws are not violative of the Privileges and Immunities Clause, its mere assertion that th'e discrimination practiced against nonresidents is justified by the peculiar problem nonresidents present will not prevail in the face of a prima facie showing that the discrimination is not supportable on the asserted grounds. This requirement that a State’s unequal treatment of nonresidents be reasoned and suitably tailored furthers the federal interest in ensuring that “a norm of comity,” Austin v. New Hampshire, supra, at 660, prevails throughout the Nation while simultaneously guaranteeing to the States the needed leeway to draw viable distinctions between their citizens and those of other States.
II
It is clear that under a proper privileges and immunities analysis Montana’s discriminatory treatment of nonresident big-game hunters in this case must fall. Putting aside the *403validity of the requirement that nonresident hunters desiring to hunt elk must purchase a combination license that resident elk hunters need not buy, there are three possible justifications for charging nonresident elk hunters an amount at least 7.5 times the fee imposed on resident big-game hunters.5 The first is conservation. The State did not attempt to assert this as a justification for its discriminatory licensing scheme in the District Court, and apparently does not do so here. Indeed, it is difficult to see how it could consistently with the first prong of a modern privileges and immunities analysis. First, there is nothing in the record to indicate that the influx of nonresident hunters created a special danger to Montana’s elk or to any of its other wildlife species. In the most recent year for which statistics are available, 1974-1975, there were 198,411 resident hunters in Montana and only 31,406 nonresident hunters. Nonresidents thus constituted only 13% of all hunters pursuing their sport in the State.6 Moreover, as the Court recognizes, ante, at 375 n. 10, the number of nonresident big-game hunters has never approached the 17,000 limit set by statute, presumably as a precautionary conservation measure.7 Second, if Montana’s discriminatorily high big-game license fee is an outgrowth of general conservation policy to discourage elk hunting, this too fails as a basis for the licensing scheme. *404Montana makes no effort similarly to inhibit its own residents. As we said in Douglas v. Seacoast Products, Inc., 431 U. S. 265, 285 n. 21 (1977), “[a] statute that leaves a State’s residents free to destroy a natural resource while excluding aliens or nonresidents is not a conservation law at all.”
The second possible justification for the fee differential Montana imposes on nonresident elk hunters — the one presented in the District Court and principally relied upon here— is a cost justification. Appellants have never contended that the Privileges and Immunities Clause requires that identical fees be assessed residents and nonresidents. They recognize that Toomer and Mullaney allow additional charges to be made on nonresidents based on both the added enforcement costs the presence of nonresident hunters imposes on Montana and the State’s conservation expenditures supported by resident-borne taxes. Their position throughout this litigation has been that the higher fee extracted from nonresident elk hunters is not a valid effort by Montana to recoup state expenditures on their behalf, but a price gouged from those who can satisfactorily pursue their avocation in no other State in the Union. The licensing scheme, appellants contend, is simply an attempt by Montana to shift the costs of its conservation efforts, however commendable they may be, onto the shoulders of nonresidents who are powerless to help themselves at the ballot box. The District Court agreed, finding that “[o]n a consideration of [the] evidence . . . and with due regard to the presumption of constitutionality . . . the ratio of 7.5 to 1 cannot be justified on any basis of cost allocation.” Montana Outfitters Action Group v. Fish Game Comm’n, 417 F. Supp. 1005, 1008 (Mont. 1976). This finding is not clearly erroneous, United States v. United States Gypsum Co., 333 U. S. 364, 394-395 (1948), and the Court does not intimate otherwise. Montana’s attempt to cost-justify its discriminatory licensing practices thus fails under the second prong of a correct privileges and immunities *405analysis — that which requires the discrimination a State visits upon nonresidents to bear a substantial relation to the problem or burden they pose.
The third possible justification for Montana’s licensing scheme, the doctrine of McCready v. Virginia, 94 U. S. 391 (1877), is actually no justification at all, but simply an assertion that a State “owns” the wildlife within its borders in trust for its citizens and may therefore do with it what it pleases. See Geer v. Connecticut, 161 U. S. 519 (1896). The lingering death of the McCready doctrine as applied to a State’s wildlife, begun with the thrust of Mr. Justice Holmes’ blade in Missouri v. Holland, 252 U. S. 416, 434 (1920) (“[t]o put the claim of the State upon title is to lean upon a slender reed”) and aided by increasingly deep twists of the knife in Foster Fountain Packing Co. v. Haydel, 278 U. S. 1, 11-14 (1928); Toomer v. Witsell, 334 U. S., at 402; Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 421 (1948); and Kleppe v. New Mexico, 426 U. S. 529, 545-546 (1976), finally became a reality in Douglas v. Seacoast Products, Inc., supra, at 284, where Mr. Justice Marshall, speaking for the Court, observed:
“A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of ‘owning’ wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture. . . . The ‘ownership’ language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing ‘the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.’ Toomer v. Witsell, 334 U. S., at 402 . . . . Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution.”
*406In unjustifiably discriminating against nonresident elk hunters, Montana has not “exercised its police power in conformity with the . . . Constitution.” The State’s police power interest in its wildlife cannot override the appellants’ constitutionally protected privileges and immunities right. I respectfully dissent and would reverse.8
See, e. g., Canadian Northern R. Co. v. Eggen, 252 U. S. 553, 560 (1920); Chambers v. Baltimore & Ohio R. Co., 207 U. S. 142, 155 (1907); Blake v. McClung, 172 U. S. 239, 248-249 (1898).
For the purpose of analysis of most cases under the Privileges and Immunities Clause of Art. IV, the terms “citizen” and “resident” are “essentially interchangeable.” Austin v. New Hampshire, 420 U. S. 656, 662 n. 8 (1975); Toomer v. Witsell, 334 U. S. 385, 397 (1948).
The reason given was: “If the statute does not run as between nonresident creditors and their debtors, it might often happen that a right of action would be extinguished, perhaps for years, in the State where the parties reside; and yet, if the defendant should be found in Wisconsin, — it may be only in a railroad train, — a suit could be sprung upon him after the claim had been forgotten. The laws of Wisconsin would thus be used as a trap to catch the unwary defendant, after the laws which had always governed the case had barred any recovery. This would be inequitable and unjust.” 93 U. S., at 77.
Although it is true that a woman’s right to choose to have an abortion is “fundamental” for purposes of equal protection analysis, Roe v. Wade, 410 U. S. 113 (1973), the Court did not rely on this fact and deemed all “medical services” within the protection of the Clause. Again no mention was made of Corfield.
This is the cost ratio of the 1976 nonresident combination license fee ($225) to the 1976 resident combination license fee ($30). Since a Montana resident wishing to hunt only elk could purchase an elk-hunting license for only $9, a nonresident who wanted to hunt only elk had to pay a fee 25 times as great as that charged a similarly situated resident of Montana.
These are the figures for all hunters in Montana, not only for those hunting elk. The Court’s notation of the fact that the number of nonresident hunters in Montana has increased more dramatically than the number of resident hunters during the past decade, ante, at 374-375, thus somewhat overstates the putative conservation threat nonresident hunters pose for Montana’s wildlife.
This restriction on the number of big-game hunters allowed into Montana is thus not at issue.
Because I find Montana's elk-hunting licensing scheme unconstitutional under the Privileges and Immunities Clause of Art. IV, § 2, I find it unnecessary to determine whether the scheme would pass equal protection scrutiny. In any event, where a State discriminates solely on the basis of noncitizenship or nonresidency in the State,, see n. 1, supra, it is my view that the Equal Protection Clause affords a discriminatee no greater protection than the Privileges and Immunities Clause.