Opinion of the Court
U. S., at 763–767, and nn. 12–13. The second category—which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.
In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” Timbs v. Indiana, 586 U. S. ___, ___ (2019) (slip op., at 3) (internal quotation marks omitted); McDonald, 561 U. S., at 764, 767 (internal quotation marks omitted); Glucksberg, 521 U. S., at 721 (internal quotation marks omitted).[1] 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 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,” 586 U. S., at ___ (slip op., at 7) (internal quotation marks 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. 586 U. S., at ___–___ (slip op., at 3–7).
A similar inquiry was undertaken in McDonald, 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
- ↑ See also, e.g., Duncan v. Louisiana, 391 U. S. 145, 148 (1968) (asking whether “a right is among those ‘fundamental principles of liberty and justice which lie at the base of our civil and political institutions’ ”); Palko v. Connecticut, 302 U. S. 319, 325 (1937) (requiring “a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental’ ” (quoting Snyder v. Massachusetts, 291 U. S. 97, 105 (1934))).
