Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/12

12 Timbs v. Indiana, 586 U. S. __ (2019) (slip op. at 3) (internal quotation marks omitted); McDonald, 561 U. S., at 764; Glucksberg, 521 U. S., at 721 (1997). And in conducting this inquiry, we have engaged in a careful analysis of the history of the right at issue.

Justice Ginsburg's opinion for the Court in Timbs v. Indiana, supra, is a recent example. In concluding that the Eighth Amendment's protection against excessive fines is "fundamental to our scheme of ordered liberty" and "deeply rooted in this Nation's history and tradition," 568 U. S., at __ (slip op., at 7) (citation omitted), her opinion traced the right back to Magna Carta, Blackstone's Commentaries, and 35 of the 37 state constitutions in effect at the ratification of the Fourteenth Amendment. Id., at ___ (slip op., at 3-7).

A similar inquiry was undertaken in McDonald, supra, which held that the Fourteenth Amendment protects the right to keep and bear arms. The lead opinion surveyed the origins of the Second Amendment, the debates in Congress about the adoption of the Fourteenth Amendment, the state constitutions in effect when that Amendment was ratified (at least 22 of the 37 States protected the right to keep and bear arms), federal laws enacted during the same period, and other relevant historical evidence. 561 U. S., at 767–777. Only then did the opinion conclude that "the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." 561