As always, you can find the Dobbs v. Jackson decision here.

Paragraph 5 of 9

Sentence 3 of 3

The next sentence is also a single claim, and it’s presented a little dramatically:

“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.” Id., at 778; see also id., at 822–850 (Thomas, J., concurring in part and concurring in judgment) (surveying history and reaching the same result under the Fourteenth Amendment’s Privileges or Immunities Clause).

Only then! ONLY THEN! Is that drama necessary? It feels a little like what Strunk and White might call “pitchman’s jargon.” Anyway, here it is without the citations:

“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.’”

This is interesting in that it is a single quote, and yet Dobbs cites two separate passages. I think covering the first would be enough, but we’ll see. This is from McDonald on page 778:

“In sum, it is clear 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.”

There’s our direct quote. Dobbs gets the timeline correct—first McDonald surveyed those five concerns in the previous sentence and then (ONLY THEN!) the Court made this statement. The Thomas citation gives us 28 pages to look at in which he presumably goes through the same process to apply different principles within the Fourteenth Amendment.

A quick scan off the concurrence reveals that this is true. Since it’s a redundant argument I’m not going to detail it here, but it definitely starts on page 822 of McDonald and then on page 850 Thomas delivers this pronouncement:

“This history confirms what the text of the Privileges or Immunities Clause most naturally suggests: Consistent with its command that ‘[n]o State shall … abridge’ the rights of United States citizens, the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.”

So they get the sequence correct here, too. Thomas lays out a bunch of history and then (ONLY THEN!) he draws his conclusion. One thing bugs me about this. The point, as I see it, is that the considerations of history and tradition are unquestioned—that their importance is universally acknowledged. To illustrate that, Justice Alito (the author of Dobbs) cites McDonald, which is authored by Justice Alito, and a concurrence to the same decision authored by Justice Thomas. The ideological space between those two justices wouldn’t admit the passage of a single page of the McDonald decision. Maybe pick two different decisions, or opinions by Justices of different eras.

Anyway, this claim is true:

• “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.’”