(dissenting).
I dissent from the majority’s opinion because I cannot accept my brothers’ unwarranted deviation from the established constitutional principles that I believe should guide our decision in this ease. While the majority concedes that the privileges and immunities clause is applicable to New Hampshire’s attempt to restrict admission to the state bar to state residents, it shackles the thrust of the clause’s command. The majority drastically reduces the burden that New Hampshire bears to justify discrimination against nonresidents, by adopting a “political function” exception to the traditional privileges and immunities clause test which was established by the Supreme Court in Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948), and is the law today. See Hicklin v. Orbeck, 437 U.S. 518, 525-28, 98 S.Ct. 2482, 2487-2488, 57 L.Ed.2d 397 (1978). Under the majority’s test, when the state action at issue is “closely tied to the state’s ability to function as a .sovereign government,” ante at 829, the exacting scrutiny mandated by Toomer and Hicklin is watered down to only a showing that the discrimination against nonresidents bears a rational relationship to some legitimate state goal.
I believe this approach is wrong for two reasons. First, it is unnecessary to adjust the prevailing standard of review to account for political functions; Supreme Court jurisprudence concerning the privileges and immunities clause at present reflects a concern for the appropriate relationship between state sovereignty and interstate equality. Second, a state’s regulation of admission to the bar is not a state policy that is, as the majority posits, “closely tied to the state’s ability to function as a sovereign government.” Ante at 829.
I.
The Supreme Court has established the point at which to undertake an analysis of whether a state’s discrimination against nonresidents is necessary for the state to function as a sovereign government. See Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978). This analysis is performed by a court when determining whether the privileges and immunities clause applies to the particular discrimination at all. See Note, A Constitutional Analysis of State Bar Residency Requirements Under the Interstate Privileges and Immunities Clause of Article IV, 92 Harv.L.Rev. 1461, 1476 (1979).
In Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354, the Court discussed the types of interests within the purview of the privileges and immunities clause. It noted that the clause “has been interpreted to prevent a State from imposing unreasonable burdens on citizens of other States in their pursuit of common callings within the State; in the ownership and disposition of privately held property within the State; and in access to the courts of the State.” Id. at 383, 98 S.Ct. at 1860 (citations omitted). On the other hand, the privileges and immunities clause has never impeded a state in discriminating against noncitizens with respect to voting or qualifying for public office.
Suffrage ... always has been understood to be tied to an individual’s identification with a particular State. See, e.g., Dunn v. Blumstein, 405 U.S. 330 [92 S.Ct. 995, 31 L.Ed.2d 274] (1972). No one would suggest that the Privileges and Immuni*107ties Clause requires a State to open its polls to a person who declines to assert that the State is the only one where he claims a right to vote. The same is true , as to qualification for- an elective office of the State. Kanapaux v. Ellisor, 419 U.S. 891 [95 S.Ct. 169, 42 L.Ed.2d 136] (1974); Chimento v. Stark, 353 P.Supp. 1211 (NH), summarily aff’d, 414 U.S. 802 [94 S.Ct. 125, 38 L.Ed.2d 89] (1973).
Baldwin, 436 U.S. at 383, 98 S.Ct. at 1860. Similarly, a state need not always treat residents and nonresidents equally with respect to the application of its laws and services. Id.
The proper approach in any case is to determine, initially, whether the discrimination against nonresidents affects an interest that “bear[s] upon the vitality of the Nation as a single entity .... ” Id.; see id. at 388, 98 S.Ct. at 1862 (elk hunting not basic to maintenance or well-being of Union; interest in elk hunting not within purview of privileges and immunities clause). Once it is determined that the interest affected by the discrimination is protected by the clause, the state must then justify the discrimination under the test outlined by the Supreme Court in Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460, and reaffirmed in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397. See Baldwin, 436 U.S. at 385-86, 98 S.Ct. at 1861—1862 (state cannot confine state resources to own residents when, without reason, it interferes with nonresident’s right to pursue livelihood; this right protected by privileges and immunities clause). A political function analysis is part of the initial determination of whether the interest affected is within the purview of the privileges and immunities clause. In deciding that the discrimination is subject to the strictures of the clause, the court necessarily determines that disparate treatment of residents and nonresidents is not essential to the preservation of the sovereign identity of the state. See Baldwin, 436 U.S. at 383, 98 S.Ct. at 1860 (privileges and immunities clause never applicable to right to vote and hold elective office; distinction between residents and nonresidents merely reflects fact that this is nation composed of individual states).
The majority’s approach is flawed because it reintroduces sovereignty - considerations at an improper point in the privileges and immunities clause analysis. In so doing, the majority unnecessarily lessens the burden a state must bear to justify discrimination against nonresidents. If, indeed, the interest affected by the discrimination is not protected by the clause, the state need not justify any preference afforded to residents. But, if the interest is protected, the constitutional rights of an individual are at stake, and the state must bear a heavy burden to justify the infringement.
My reading of the precedent relied on by the majority reveals the absence of support for its attempt to change the proper standard of review. The majority correctly notes that Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397, suggests that precedent under the commerce clause is helpful in interpreting the privileges and immunities clause. Id. at 531-32, 98 S.Ct. at 2490-2491. The majority, however, looks to a line of commerce clause cases that are inapposite to a proper understanding of the privileges and immunities clause.
The commerce clause and the privileges and immunities clause are similar because both act as a limit on a state’s ability to grant preferences to its own citizens to the disadvantage of noncitizens. Thus Hicklin, id. at 532-33, 98 S.Ct. at 2490-2491, refers to cases in which the Supreme Court, relying on the commerce clause, invalidated states’.attempts to limit use of in-state resources to state residents. Id. at 532, 98 S.Ct. at 2491 (in West v. Kansas Natural Gas, 221 U.S. 229, 31 S.Ct. 564, 55 L.Ed. 716 (1911), Court held Oklahoma’s prohibition on out-of-state shipment of in-state natural gas violates commerce clause); Hicklin, 437 U.S. at 532, 98 S.Ct. at 2491 (in Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923), Court held West Virginia’s requiring natural gas companies to prefer state residents violates commerce clause); Hicklin, 437 U.S. at 533, 98 S.Ct. at *1082491 (in Foster Packing Co. v. Haydel, 278 U.S. 1, 49 S.Ct. 1, 73 L.Ed. 147 (1928), Court held commerce clause prohibits Louisiana’s attempt to require in-state processing of indigenous shrimp as prerequisite to out-of-state shipment). The commerce clause cases relied on by the majority, National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), and its progeny, EEOC v. Wyoming, _ U.S. _, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), and Hodel v. Virginia Surface Mining & Reclamation Association, Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), deal with limitations on the federal power to regulate commerce. They say nothing about state power or the legitimacy of state discrimination in favor of state residents.
The majority also asserts that Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979) (per curiam), supports reducing the burden a state bears to justify discrimination under the privileges and immunities clause in the setting of the instant case. The obvious flaw in this argument, which is noted by the majority, is that Leis did not discuss the privileges and immunities clause. In fact, the clause was not implicated in the case because the pro hac vice statute at issue did not discriminate on the basis of citizenship. The only distinction drawn was between those persons who were members of the Ohio bar and those who were not.
Nor can I find any support for the majority in the Supreme Court’s reference in Leis to its summary affirmance in Norfolk and Western Railway Co. v. Beatty, 423 U.S. 1009, 96 S.Ct. 439, 46 L.Ed.2d 381 (1975), aff’g mem. 400 F.Supp. 234 (S.D.Ill.1975). The majority asserts that the rejection of the privileges and immunities clause claim in Norfolk and Western indicates that a less rigorous standard of review is applied to privileges and immunities clause eases dealing with regulation of attorneys. It argues that even if the regulations at issue ultimately had been upheld, they would have been reviewed under a far more exacting scrutiny.
This conclusion is without foundation. In Norfolk and Western the plaintiffs argued that they were constitutionally entitled to be represented in Illinois by out-of-state counsel. 400 F.Supp. at 236. They relied primarily on Spanos v. Skouras Theatres Corp., 364 F.2d 161 (2d Cir.) (in banc), cert. denied, 385 U.S. 987, 87 S.Ct. 597, 17 L.Ed.2d 448 (1966), which held that a plaintiff presenting a federal claim has a constitutional right under the privileges and immunities clause to have its out-of-state counsel appear on a pro hac vice basis. Id. at 170-71. In Norfolk and Western the court simply rejected the notion that any such right existed. 400 F.Supp. at 237-38. The court did not give less exacting scrutiny to the claim; it gave no scrutiny at all.
II.
Under the appropriate standards for resolving privileges and immunities clause cases, New Hampshire’s bar admission restriction cannot withstand scrutiny. First, the practice of law is not within the limited political function exception to the range of interests protected by the privileges and immunities clause.
As explained by the Supreme Court in Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354, the political function exception is a recognition that “[sjome distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted ....” Id. at 383, 98 S.Ct. at 1860. There is no exhaustive list of rights that must be reserved to a state’s own citizens in order to enable the state to retain its sovereign identity. In Baldwin the Supreme Court identified the right to vote and to hold elective office as interests that legitimately should be tied to state citizenship. Additional guidance can be found in cases recognizing a state’s right to distinguish between aliens and citizens when such distinctions are necessary for the state to retain its status as a separate political community.
*109In a long line of Supreme Court cases aliens have mounted equal protection clause challenges to states’ attempts to make citizenship a qualification for participation in a state benefit, and many of these challenges have been successful. See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); cf. Examining Board of Engineers v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976) (Puerto Rico cannot make United States citizenship qualification for civil engineering license). The Supreme Court also has recognized that a state has an inherent obligation “ ‘to preserve the basic conception of a political community.’ ” Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 2850, 37 L.Ed.2d 853 (1973) (quoting Dunn v. Blumstein, 405 U.S. 330, 344, 92 S.Ct. 995, 1004, 31 L.Ed.2d 274 (1972)).
[T]his power and responsibility of the State applies, not only to the qualifications of voters, but also to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government. There ... is “where citizenship bears some rational relationship to the special demands of the particular position.”
Sugarman, 413 U.S. at 647, 93 S.Ct. at 2850 (quoting Dougall v. Sugarman, 339 F.Supp. 906, 911 (Lumbard, J., concurring)). Thus, in this limited area a state may draw lines based on affiliation with the sovereign government because of the state’s special need to retain its sovereign identity. See Cabell v. Chavez-Salido, 454 U.S. 432, 102 S.Ct. 735, 70 L.Ed.2d 677 (1982) (probation officers); Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979) (public school teachers); Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978) (police officers).
This reluctance to interfere with a state’s protection of its sovereign identity serves the same purpose as the political function exception to the privileges and immunities clause. Both recognize that in certain areas a state must have a citizen’s allegiance to perform properly the special functions that a state owes to its citizens. Basically, a state can require that those who govern the state or contribute to it in a uniquely sovereign way must be part of the same political community as those who are governed.
Lawyers do not fall within this special group of individuals who help the state in performing its sovereign functions. See Note, supra p. 829, at 1476-79. This conclusion was reached by the Supreme Court when it refused to allow a state to prohibit aliens from qualifying for admission to the state’s bar.
Lawyers do indeed occupy professional positions of responsibility and influence that impose on them duties correlative with their vital right of access to the courts. Moreover, by virtue of their professional aptitudes and natural interests, lawyers have been leaders in government throughout the history of our country. Yet, they are not officials of government by virtue of being lawyers. Nor does the status of holding a license to practice law place one so close to the core of the political process as to make him a formulator of government policy.
In re Griffiths, 413 U.S. at 729, 93 S.Ct. at 2858 (footnote omitted).
Thus, when a state seeks to limit access to the bar on the basis of citizenship, it is not entitled to the deference it would be given if the limitation were tied to its sovereign needs. Rather, a citizenship restriction for lawyers should be treated the same as any citizenship qualification that affects the economic interests of the discriminatees. See Cabell v. Chavez-Salido, 454 U.S. at 438-39, 102 S.Ct. at 739-740; Ambach v. Norwick, 441 U.S. at 76 n. 6, 99 S.Ct. at 1594 n. 6. Under the privileges and immunities clause, this means that the state must satisfy the test laid out in Toomer and Hicklin.
*110To justify its rule excluding nonresidents from the bar New Hampshire must show that nonresidents “constitute a peculiar source of the evil at which the [rule] is aimed,” Hicklin, 437 U.S. at 525-26, 98 S.Ct. at 2487-2488 (quoting Toomer, 334 U.S. at 398, 68 S.Ct. at 1163), and that the rule is closely tailored to eradicating the evil nonresidents present. That is, that the state cannot achieve its goal through a method that would be less onerous for nonresidents. See Hicklin, 437 U.S. at 527-28, 98 S.Ct. at 2488-2489. New Hampshire cannot meet this burden.
The evils that New Hampshire claims nonresidents present are: (1) ignorance of local practice and rules; (2) disregard for developing a good reputation in the state; and (3) difficulty of ensuring nonresidents’ availability for court proceedings and subjecting them to disciplinary action. The responsibility for these evils cannot be placed solely on nonresidents. Any new lawyer is ignorant of local practice and rules. As the district court pointed out, developing a good reputation is a function of the “heart,” not the home. As to availability for court proceedings, many nonresidents are closer to New Hampshire courts than are residents. New Hampshire’s long-arm statute makes it as easy for the state to reach and discipline nonresident lawyers as it is to reach and discipline residents.
Numerous less drastic and more closely tailored alternatives are available to the state. New Hampshire already requires all new lawyers to participate in a legal skills course soon after admission to the bar. Additional continuing legal education requirements could be imposed. Similarly, the state through its power to regulate members of the bar can control courtroom decorum and set standards for professional conduct and trial practice. New Hampshire has an integrated bar association to which all lawyers who have been admitted to the bar must belong. In short, as the district court found, New Hampshire cannot show that its exclusion of nonresidents from the bar is necessary to achieve any legitimate goal.
III.
Finally, even under the test laid out by . the majority, New Hampshire’s rule is irrational. See Turner v. Fouche, 396 U.S. 346, 362, 90 S.Ct. 532, 541, 24 L.Ed.2d 532 (1970). While on the one hand the state claims that residence in the state is' necessary to practice properly as a New Hampshire lawyer, there is no requirement that a lawyer remain a New Hampshire resident any longer than the day he or she is admitted to the bar. Thereafter, the properly admitted lawyer can live anywhere at all and still practice in New Hampshire. It is obvious that the purpose of the rule is an attempt to restrict the practice of law in New Hampshire to residents of that state. The attempt is both unconstitutional and ineffective.
In closing, I note the irony of a majority opinion written by those who aré members of a bar (Massachusetts) that has no residency requirements and a dissent written by a member of the New Hampshire bar who has practiced law only in New Hampshire.
For the foregoing reasons, I think the New Hampshire rule is unconstitutional and I would affirm the judgment of the district court.