BIRCH, Circuit Judge:
In this case, the American Civil Liberties Union (“ACLU”)1 invites us to add a new right to the current catalogue of fundamental rights under the Constitution: a right to sexual privacy. It further asks us to declare Alabama’s statute prohibiting the sale of “sex toys” to be an impermissible burden on this right. Alabama responds that the statute exercises a time-honored use of state police power- — -restricting the sale of sex. We are compelled to agree with Alabama and must decline the ACLU’s invitation.
I. BACKGROUND
Alabama’s Anti-Obscenity Enforcement Act prohibits, among other things, the commercial distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.” Ala. Code § 13A-12-200.2 (Supp.2003).
The Alabama statute proscribes a relatively narrow bandwidth of activity. It prohibits only the sale — but not the use, possession, or gratuitous distribution — of sexual devices (in fact, the users involved in this litigation acknowledge that they already possess multiple sex toys). The law does not affect the distribution of a number of other sexual products such as ribbed condoms or virility drugs. Nor does it prohibit Alabama residents from purchasing sexual devices out of state and bringing them back into Alabama. Moreover, the statute permits the sale of ordinary vibrators and body massagers that, although useful as sexual aids, are not “designed or marketed ... primarily” for that particular purpose. Id. Finally, the statute exempts sales of sexual devices “for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.” Id. § 13A-12-200.4.
This case, which is now before us on appeal for the second time, involves a challenge to the constitutionality of the Alabama statute. The ACLU, on behalf of various individual users and vendors of sexual devices, initially filed suit seeking to enjoin the statute on 29 July 1998, a month after the statute took effect. The ACLU argued that the statute burdens and violates sexual-device users’ right to privacy [1234]*1234and personal autonomy under the Fourteenth Amendment to the United States Constitution.2
Following a bench trial, the district court concluded that there was no currently recognized fundamental right to use sexual devices and declined the ACLU’s invitation to create such a right. Williams v. Pryor, 41 F.Supp.2d. 1257, 1282-84 (N.D.Ala.1999) (Williams I). The district court then proceeded to scrutinize the statute under rational basis review. Id. at 1284. Concluding that the statute lacked any rational basis, the district court permanently enjoined its enforcement. Id. at 1293.
On appeal, we reversed in part and affirmed in part. Williams v. Pryor, 240 F.3d 944 (11th Cir.2001) {Williams II). We reversed the district court’s conclusion that the statute lacked a rational basis and held that the promotion and preservation of public morality provided a rational basis. Id. at 952. However, we affirmed the district court’s rejection of the ACLU’s facial fundamental-rights challenge to the statute. Id. at 955. We then remanded the action to the district court for further consideration of the as-applied fundamental-rights challenge. Id. at 955.
On remand, the district court again struck down the statute. Williams v. Pryor, 220 F.Supp.2d 1257 (N.D.Ala.2002) (Williams III). On cross motions for summary judgment, the district court held that the statute unconstitutionally burdened the right to use sexual devices within private adult, consensual sexual relationships. Id. After a lengthy discussion of the history of sex in America, the district court announced a fundamental right to “sexual privacy,” which, although unrecognized under any existing Supreme Court precedent, the district court found to be deeply rooted in the history and traditions of our nation. Id. at 1296. The district court further found that this right “eneom-pass[es] the right to use sexual devices like the vibrators, dildos, anal beads, and artificial vaginas” marketed by the vendors involved in this case. Id. The district court accordingly applied strict scrutiny to the statute. Id. Finding that the statute failed strict scrutiny, the district court granted summary judgment to the ACLU and once again enjoined the statute’s enforcement. Id. at 1307.
Alabama now appeals that decision. The only question on this appeal is whether the statute, as applied to the involved users and vendors, violates any fundamental right protected under the Constitution.3 The proper analysis for evaluating this question turns on whether the right asserted by the ACLU falls within the parameters of any presently recognized fundamental right or whether it instead requires us to recognize a hitherto unarticulated fundamental right.
II. DISCUSSION
We review a summary judgment decision de novo and apply the same legal standard used by the district court. Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1236 (11th Cir.2003). Our de novo review begins with a discussion of the asserted right. Here, we reaffirm our conclusion in Williams II, 240 F.3d at 954, that no Supreme Court precedents, includ[1235]*1235ing the recent decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), are decisive on the question of the existence of such a right. Because the ACLU is asking us to recognize a new fundamental right, we then apply the analysis required by Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). As we explain, we conclude that the asserted right does not clear the Glucksberg bar.
A. Asserted Right
The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property without due process of law.” The most familiar function of this Clause is to guarantee procedural fairness in the context of any deprivation of life, liberty, or property by the State. The users and vendors here do not claim to have been denied procedural due process. Instead, they rely on the Due Process Clause’s substantive component, which courts have long recognized as providing “heightened protection against government interference with certain fundamental rights and liberty interests.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (citation omitted).
The ACLU argues that the use of sexual devices is among those activities that, although not enumerated in the Constitution, are protected under the concept of substantive due process. According to the ACLU, the State of Alabama, through its prohibition on the commercial distribution of sex toys qua sex toys, has intruded into the most intimate of places — the bedrooms of its citizens— and the lawful sexual conduct that occurs therein. While the statute’s reach does not directly proscribe the sexual conduct in question, it places — without justification — a substantial and undue burden on the ability of the plaintiffs to obtain devices regulated by the statute. By restricting sales of these devices to plaintiffs, Alabama has acted in violation of the fundamental rights of privacy and personal autonomy that protect an individual’s lawful sexual practices guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments of the United States Constitution.
Williams III, at 1261 (quoting the ACLU’s amended complaint).
The ACLU invokes “privacy” and “personal autonomy” as if such phrases were constitutional talismans. In the abstract, however, there is no fundamental right to either. See, e.g., Glucksberg, 521 U.S. at 725, 117 S.Ct. at 2270 (fundamental rights are “not simply deduced from abstract concepts of personal autonomy”). Undoubtedly, many fundamental rights currently recognized under Supreme Court precedent touch on matters of personal autonomy and privacy. However, “[t]hat many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected.” Id. at 727, 117 S.Ct. at 2271. Such rights have been denominated “fundamental” not simply because they implicate deeply personal and private considerations, but because they have been identified as “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Id. at 720-21, 117 S.Ct. at 2268 (internal citations and quotation marks omitted).
Nor, contrary to the ACLU’s assertion, have the Supreme Court’s substantive-due-process precedents recognized a freestanding “right to sexual privacy.” The Court has been presented with repeated opportunities to identify a fundamental right to sexual privacy — and has invariably declined. See, e.g., Carey v. Population [1236]*1236Servs. Int’l, 431 U.S. 678, 688 n. 5, 97 S.Ct. 2010, 2018 n. 5, 52 L.Ed.2d 675 (1977) (noting that the Court “has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating private consensual sexual behavior among adults, and we do not purport to answer that question now”) (internal citation and punctuation omitted). Although many of the Court’s “privacy” decisions have implicated sexual matters, see, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (abortion); Carey, 431 U.S. at 678, 97 S.Ct. at 2010 (contraceptives), the Court has never indicated that the mere fact that an activity is sexual and private entitles it to protection as a fundamental right.
The Supreme Court’s most recent opportunity to recognize a fundamental right to sexual privacy came in Lawrence v. Texas, where petitioners and amid expressly invited the court to do so.4 That the Lawrence Court had declined the invitation was this court’s conclusion in our recent decision in Lofton v. Sec. of Dept. of Children and Family Servs., 358 F.3d 804, 815-16 (11th Cir.2004). In Lofton, we addressed in some detail the “question of whether Lawrence identified a new fundamental right to private sexual intimacy.”5 Id. at 815. We concluded that, although Lawrence clearly established the unconstitutionality of criminal prohibitions on consensual adult sodomy, “it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right” — whether to homosexual sodomy specifically or, more broadly, to all forms of sexual intimacy. Id. at 817. We noted in particular that the Lawrence opinion did not employ fundamental-rights analysis and that it ultimately applied rational-basis review, rather than strict scrutiny, to the challenged statute. Id. at 816-17.6
The dissent seizes on scattered dicta from Lawrence to argue that Lawrence recognized a substantive due process right of consenting adults to engage in private intimate sexual conduct, such that all in-[1237]*1237Mngements of this right must be subjected to strict scrutiny.7 As we noted in Lofton, we are not prepared to infer a new fundamental right from an opinion that never employed the usual Glucksberg analysis for identifying such rights. Id. at 816. Nor are we prepared to assume that Glucksberg — a precedent that Lawrence never once mentions — is overruled by implication.
The dissent in turn argues that the right recognized in Lawrence was a longstanding right that preexisted Lawrence, thus obviating the need for any Glucksberg-type fundamental rights analysis. But the dissent never identifies the source, textual or precedential, of such a preexisting right to sexual privacy. It does cite Griswold, Eisenstadt, Roe, and Carey. However, although these precedents recognize various substantive rights closely related to sexual intimacy, none of them recognize the overarching right to sexual privacy asserted here. Griswold (marital privacy and contraceptives); Eisenstadt (equal protection extension of Griswold)-, Roe (abortion); Carey (contraceptives). As we noted above, in the most recent of these decisions, Carey, the Court specifically observed that it had not answered the question of whether there is a constitutional right to private sexual conduct.8 431 U.S. [1238]*1238at 688 n. 5, 97 S.Ct. at 2018 n. 5. Moreover, nearly two decades later, the Glucks-berg Court, listing the current catalog of fundamental rights, did not include such a right. 521 U.S. at 720, 117 S.Ct. at 2267.
In short, we decline to extrapolate from Lawrence and its dicta a right to sexual privacy triggering strict scrutiny. To do so would be to impose a fundamental-rights interpretation on a decision that rested on rational-basis grounds, that never engaged in Glucksberg analysis, and that never invoked strict scrutiny. Moreover, it would be answering questions that the Lawrence Court appears to have left for another day. Of course, the Court may in due course expand Lawrence’s precedent in the direction anticipated by the dissent. But for us preemptively to take that step would exceed our mandate as a lower court.9
[1239]*1239
B. Glucksberg Analysis
Because the ACLU is seeking recognition of a right neither mentioned in the Constitution nor encompassed within the reach of the Supreme Court’s existing fundamental-right precedents, we must turn to the two-step analytical framework that the Court has established for evaluating new fundamental-rights claims. See Glucksberg, 521 U.S. at 720-21, 117 S.Ct. at 2268. First, in analyzing a request for recognition of a new fundamental right, or extension of an existing one, we “must begin with a careful description of the asserted right.” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993); see also Glucksberg, 521 U.S. at 721, 117 S.Ct. at 2268. Second, and most critically, we must determine whether this asserted right, carefully described, is one of “those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 720-21, 117 S.Ct. at 2268 (internal citations and quotation marks omitted).
This analysis, as the Supreme Court has stressed, must proceed with “utmost care” because of the dangers inherent in the process of elevating extra-textual rights to constitutional status, thereby removing them from the democratic field of play:
By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in' this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court.
Id. at 720, 117 S.Ct. at 2267-68 (internal citations and quotation marks omitted). The mandate to proceed carefully applies with added force when venturing into terrain where the Supreme Court itself has tread lightly, as it has here. As we explain, the district court failed to exercise this “utmost care” in conducting the two-pronged Glucksberg analysis.
1. Careful Description
As we noted in Williams II, the district court’s initial opinion “narrowly framed the analysis as the question whether the concept of a constitutionally protected right to privacy protects an individual’s liberty to use sexual devices when engaging in lawful, private, sexual activity.” 240 F.3d at 953 (internal quotation marks omitted). On appeal, we affirmed this formulation, stating that “the district court correctly framed the fundamental rights analysis in this case.” Id. However, on remand, the district court abandoned its initial, careful framing of the issue and instead characterized the asserted right more broadly as a generalized “right to sexual privacy.” Williams III, 220 F.Supp.2d at 1277 (emphasis omitted).10
In searching for, and ultimately finding, this right to sexual privacy, the district court did little to define its scope and bounds. As formulated by the district court, the right potentially encompasses a great universe of sexual activities, including many that historically have been, and [1240]*1240continue to be, prohibited. At oral arguments, the ACLU contended that “no responsible counsel” would challenge prohibitions such as those against pederasty and adult incest under a “right to sexual privacy” theory. However, mere faith in the responsibility of the bar scarcely provides a legally cognizable, or constitutionally significant, limiting principle in applying the right in future cases.11
The sole limitation provided by the district court’s ruling was that the right would extend only to consenting adults. Id. at 1294. The eonsenting-adult formula, of course, is a corollary to John Stuart Mill’s celebrated “harm principle,” which would allow the state to proscribe only conduct that causes identifiable harm to another. See generally John Stuart Mill, On Liberty (Elizabeth Rapaport ed., Hackett Pub. Co. 1978) (1859). Regardless of its force as a policy argument, however, it does not translate ipse dixit into a constitutionally cognizable standard. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68, 93 S.Ct. 2628, 2641, 37 L.Ed.2d 446 (1973) (“[F]or us to say that our Constitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation, is a step we are unable to take.”).
If we were to accept the invitation to recognize a right to sexual intimacy, this right would theoretically encompass such activities as prostitution, obscenity, and adult incest — even if we were to limit the right to consenting adults. See, e.g., id. at 68 n. 15, 93 S.Ct. at 2641 n. 15 (“The state statute books are replete with constitutionally unchallenged laws against prostitution, suicide, voluntary self-mutilation, brutalizing ‘bare fist’ prize fights, and duels, although these crimes may only directly involve ‘consenting adults.’ ”). This in ton would require us to subject all infringements on such activities to strict scrutiny. Glucksberg, 521 U.S. at 721, 117 S.Ct. at 2268. In short, by framing our inquiry so broadly as to look for a general right to sexual intimacy, we would be answering many questions not before us on the present facts.
Indeed, the requirement of a “careful description” is designed to prevent the reviewing court from venturing into vaster constitutional vistas than are called for by the facts of the case at hand. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985). One of “the cardinal rules” of constitutional jurisprudence is that the scope of the asserted right — and thus the parameters of the inquiry' — must be dictated “by the precise facts” of the immediate case. Id.; see also Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 277-78, 110 S.Ct. 2841, 2851, 111 L.Ed.2d 224 (1990) (“[I]n deciding a question of such magnitude and importance it is the better part of wisdom not to attempt, by any general statement, to cover every possible phase of the subject.”) (citation and internal punctuation omitted).
Glucksberg and Flores, cases in which the Court was asked to expand certain substantive due process rights, are instructive examples. In Glucksberg, the lower court and the petitioners had variously characterized the asserted right as “a liberty interest in determining the time and manner of one’s death,” 521 U.S. at 722, 117 S.Ct. at 2269, “a liberty to choose how to die and a right to control one’s final [1241]*1241days,” id., and the “liberty of competent, terminally ill adults to make end-of-life decisions free of undue government interference,” id. at 724, 117 S.Ct. at 2269. The Court rejected these characterizations as overbroad, noting its “tradition of carefully formulating the interest at stake in substantive-due-process cases.” Id. at 722, 117 S.Ct. at 2269. Then, looking to the specific statute under challenge — a ban on assisted suicide — the Court recast the asserted right as “a right to commit suicide which itself includes a right to assistance in doing so,” id., or as “a right to commit suicide with another’s assistance,” id. at 724, 117 S.Ct. at 2269.
Under challenge in Flores was an immigration regulation that governed the detention and release of alien juveniles. 507 U.S. at 294-98, 113 S.Ct. at 1443-45. The respondents, a class of detained alien juveniles, argued that the regulation violated their “fundamental right to freedom from physical restraint.” Id. at 299, 113 S.Ct. at 1446 (internal quotation marks omitted). The Supreme Court, emphasizing the importance of beginning substantive-due-process analysis with a “careful description,” rejected respondents’ broad formulation of the implicated liberty interests. 507 U.S. at 302, 113 S.Ct. at 1447. The Court then restated the putative right — by careful reference to the challenged regulation:
The “freedom from physical restraint” invoked by respondents is not at issue in this case.... Nor is the right asserted the right of a child to be released from all other custody into the custody of its parents, legal guardian, or even close relatives: The challenged regulation requires such release when it is sought. Rather, the right at issue is the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution.
Id. (internal citations omitted).
As in Glucksberg and Flores, the scope of the liberty interest at stake here must be defined in reference to the scope of the Alabama statute. We begin by observing that the broad rights to “privacy” and “sexual privacy” invoked by the ACLU are not at issue. The statute invades the privacy of Alabama residents in their bedrooms no more than does any statute restricting the availability of commercial products for use in private quarters as sexual enhancements.12 Instead, the challenged Alabama statute bans the commercial distribution of sexual devices.13 At a minimum, therefore, the putative [1242]*1242right at issue is the right to sell and purchase sexual devices.
It is more than that, however. For purposes of constitutional analysis, restrictions on the ability to purchase an item are tantamount to restrictions on the use of that item. Thus it was that the Glucksberg Court analyzed a ban on providing suicide assistance as a burden on the right to receive suicide assistance. 521 U.S. at 723, 117 S.Ct. at 2269. Similarly, prohibitions on the sale of contraceptives have been analyzed as burdens on the use of contraceptives. Carey, 431 U.S. at 688, 97 S.Ct. at 2018 (“[T]he same test must be applied to state regulations that burden an individual’s right ... by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely.”). Because a prohibition on the distribution of sexual devices would burden an individual’s ability to use the devices, our analysis must be framed not simply in terms of whether the Constitution protects a right to sell and buy sexual devices, but whether it protects a right to use such devices.
2. “History and Tradition” and “Implicit in the Concept of Ordered Liberty”
With this “careful description” in mind, we turn now to the second prong of the fundamental-rights inquiry. The crucial inquiry under this prong is whether the right to use sexual devices when engaging in lawful, private sexual activity is (1) “objectively, deeply rooted in this Nation’s history and tradition” and (2) “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” Glucksberg, 521 U.S. at 721, 117 S.Ct. at 2268 (citations omitted). Although the district court never addressed the second part of this inquiry, it answered the “history and tradition” question in the affirmative.
We find that the district court, in reaching this conclusion, erred on four levels. The first error relates back to the district court’s over-broad framing of the asserted right in question. Having framed the relevant right as a generalized “right to sexual privacy,” the district court’s history and tradition analysis consisted largely of an irrelevant exploration of the history of sex in America. Second, we find that this analysis placed too much weight on contemporary practice and attitudes with respect to sexual conduct and sexual devices. Third, rather than look for a history and tradition of protection of the asserted right, the district court asked whether there was a history and tradition of state non-interference with the right. Finally, we find that the district court’s uncritical reliance on certain expert declarations in interpreting the historical record was flawed and that its reliance on certain putative “concessions” was unfounded.
a. The Scope of the District Court’s History and Tradition Analysis
The district court began its Glucksberg-mandated history and tradition inquiry by defining its task as one of determining whether to “recognize a fundamental right to sexual privacy.” Williams III, 220 F.Supp.2d at 1277. After an extensive survey of the history of sex in American culture and law- — replete with cites to the Kinsey studies and Michel Foucault — the district court concluded that “there exists a constitutionally inherent right to sexual privacy that firmly encompasses state noninterference with private, adult, consensual sexual relationships.” Id. at 1296. As examined above, the Supreme Court’s own reticence in this area, and its admonition to carefully define the right at stake, convince us that the district court erred in undertaking to find a generalized “right to sexual privacy.” Given this over-broad starting point, the district court’s subse[1243]*1243quent inquiry, predictably, was likewise broader than called for by the facts of the case. The inquiry should have been focused not broadly on the vast topic of sex in American cultural and legal history, but narrowly and more precisely on the treatment of sexual devices within that history and tradition.
b. The District Court’s Focus on “Contemporary Practice”
In reaching its holding, the district court relied heavily on “contemporary practice,” emphasizing the “contemporary trend of legislative and societal liberalization of attitudes toward consensual, adult sexual activity.” Id. at 1294; see generally id. at 1289-94; see also id. at 1296 (holding that “there is a ‘history, legal tradition, and practice’ in this country of deliberate state non-interference with private sexual relationships between married couples, and a contemporary practice of the same between unmarried persons”) (emphasis added) (citation omitted).
Our first concern is the legal significance, or the lack thereof, of much of the district court’s source material for this contemporary practice. In addition to invoking a cluster of Supreme Court precedents touching on matters of procreation and familial integrity, the district court looked to social science data respecting premarital intercourse, marriage and divorce rates, and the like. Id. at 1290. It further noted the revolutionary impact of the Kinsey studies, the “imagery and implements of adult sexual relationships [that] pervade modern American society,” the availability of “pornography of the grossest sort,” and the “widespread marketing of Viagra (including by such notable personalities as former United States Senate Majority Leader and 1996 Republican presidential candidate Robert J. Dole and popular NASCAR driver Mark Martin).” Id. at 1294. While such evidence undoubtedly confirms the district court’s discovery of “the specter of a twentieth century sexual liberalism,” id. at 1291, its relevance under Glucksberg is scant.
The district court justified this emphasis by noting that the Glucksberg Court had relied on contemporary practice in reaching its determination that assisted suicide is not a constitutional right. See, e.g., id. at 1275 (Glucksberg “considered current statutes, legislative debates, voter initiatives, and the positions of contemporary task forces and commissions on the issue of assisted suicide”). This gloss, however, considerably overstates that Court’s reliance on contemporary attitudes. What the Glucksberg Court did was to note that democratic action in many states had recently reaffirmed assisted-suicide bans, thus buttressing the Court’s conclusion that assisted suicide is not deeply rooted in the history and traditions of the nation. 521 U.S. at 716-19, 117 S.Ct. at 2265-67. But the existence of this contemporary practice was never essential to that conclusion. That is, the Court never suggested that a lack of contemporary reinforcement of the prohibition on assisted suicide would have led it to a contrary conclusion.
The district court’s interpretation also overlooks the context of Glucksberg’s contemporary practice analysis. The Court began its examination of history and tradition by inquiring “whether this asserted right has any place in our Nation’s traditions.” Id. at 723, 117 S.Ct. at 2269 (emphasis added). Having found that it did not, the Court had no need to proceed to the further question of whether that right was deeply rooted in those traditions (nor whether it was “implicit in the concept of ordered liberty”). Part of the reason the Court was able to dismiss the asserted right so summarily was because it found that the prohibition on assisted suicide “continues explicitly!’ to the present. Id. In short, the democratic action cited by Glucksberg was merely one factor among [1244]*1244many disproving the claim that assisted suicide is a “deeply rooted” right.14
c. The District Court’s Faulty Equation of Historical Non-Interference with Historical Protection
The district court’s central holding — its discovery of a constitutional “right to use sexual devices like ... vibrators, dildos, anal beads, and artificial vaginas” — was not based on any evidence of a history and tradition of affirmative protection of this right. Williams III, 220 F.Supp.2d at 1296. The district court’s lengthy opinion cites no reference to. such a right in the usual repositories of our freedoms, such as federal and state constitutional provisions, constitutional doctrines, statutory provisions, common-law doctrines, and the like. Instead, the critical evidence for the district court was the relative scarcity of statutes explicitly banning sexual devices and the rarity of reported cases of sexual-devices prosecutions — along with various factual assertions from declarations by the ACLU’s experts. From this, the district court inferred “that history and contemporary practice demonstrate a conscious avoidance of regulation of [sexual] devices by the states.” Id. at 1296.
This negative inference essentially inverted Glucksberg’s history and tradition inquiry. Glucksberg, 521 U.S. at 721, 117 S.Ct. at 2268. The district court — rather than requiring a showing that the right to use sexual devices is “deeply rooted in this Nation’s history and tradition,” id.- — looked for a showing that proscriptions against sexual devices are deeply rooted in history and tradition. Under this approach, the freedom to smoke, to pollute, to engage in private discrimination, to commit marital rape — at one time or another — all could have been elevated to fundamental-rights status. Moreover, it would create the perverse incentive for legislatures to regulate every area within their plenary power for fear that their restraint in any area might give rise to a right of constitutional proportions.
Beyond these obvious objections, the most significant flaw in the district court’s analysis is its misreading of Glucksberg. Admittedly, the Glucksberg Court, in declining to extend constitutional protection to assisted suicide, cited the extensive history of laws forbidding or discouraging suicide. But the context of this inquiry was the Court’s attempt to determine whether a right to suicide, and particularly assisted suicide, was deeply rooted in American history and tradition. Naturally, prohibitions on suicide were particularly competent evidence of the absence of such a history and tradition. The Glucks-berg Court, however, never suggested that the reviewing court must find a history of proscription of a given activity before declining to recognize a new constitutional right to engage in that activity. Id. at 710-16, 117 S.Ct. at 2262-65; see also id. at 725, 117 S.Ct. at 2270 (rejecting the analogy between the constitutionally-protected right to refuse unwanted medical treatment and the asserted right to assisted suicide, noting that the former right “has never enjoyed similar legal protection”).
In short, nothing in Glucksberg indicates that an absence of historical prohibition is [1245]*1245tantamount, for purposes of fundamental-rights analysis, to an historical record of protection under the law. To the contrary, the Glucksberg standard expressly requires a showing that the asserted right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” Id. at 721, 117 S.Ct. at 2268. Not only does the record before us fail to evidence such a deeply rooted right, but it suggests that, to the extent that sex toys historically have attracted the attention of the law, it has been in the context of proscription, not protection.
The chief example of this proscription is the “Comstock Laws,” federal and state legislation adopted in the late 1800s. The federal Comstock Act of 1873 was a criminal statute directed at “the suppression of Trade in and Circulation of obscene Literature and Articles of immoral Use.” See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 70, 103 S.Ct. 2875, 2882, 77 L.Ed.2d 469 (1983) (quoting Act of March 3, 1873, ch. 258, § 2, 17 Stat. 599 (1873)). The Act prohibited importation of and use of the mails for transporting, among other things, “every article or thing intended or adapted for any indecent or immoral use.” United States v. Chase, 135 U.S. 255, 257, 10 S.Ct. 756, 756, 34 L.Ed. 117 (1890). Various states also enacted similar statutes prohibiting the sale of such articles. See, e.g., Conn. Gen.Stat. § 1325 (1902); Mass. Gen. Laws Ann. ch. 272 § 21 (West 2004) (passed 1879).
The district court, however, discounted the significance of the Comstock laws, describing them as “aberrant to the sexual privacy” generally afforded to consensual, adult sexual conduct. Williams III, 220 F.Supp.2d. at 1286. The district court cited expert declarations offered by the ACLU to the effect that the Comstock laws were not motivated primarily by a desire to ban sexual devices. Id. The district court further noted that searches of the annotations to the Comstock Act and of Federal Cases found no references to cases involving dildos and vibrators. Id. at 1287.
Even if these prohibitions on sexual devices were not widespread or vigorously enforced, their mere existence significantly undermines the argument that sexual devices historically have been free from state interference. Moreover, the lack of statutory references to sexual devices is relatively meaningless without evidence that commerce in these devices was sufficiently widespread, or sufficiently in the public eye, to merit legislative attention, at least beyond general anti-obscenity laws. Likewise, the focus on searches of federal case reporters for references to “vibrators” or “dildos” assumes, unjustifiably, that reported cases are reliable proxies for actual prosecutions, the vast majority of which would have never appeared in the court reporters (it also overlooks the possibility of prosecutions under state law). It also overlooks the possibility that traditional sensibilities and mores restrained courts from explicitly mentioning particular sexual devices in the text of judicial opinions.
In light of these realities, the negative inference drawn by the district court — that the scarcity of explicit reference to sexual devices in statutory schemes and reported cases reflects a “deliberate non-interference,” id. at 1286 — is too speculative a basis for constitutionalizing a hitherto unrecognized right. This is especially true given the lack of any indicia of affirmative protection under the law. In short, there is no competent evidence in the record before us indicating that the lack of explicit and aggressive proscription of sex toys was, as the district court surmised, “conscious avoidance of regulation of these devices by the states.” Id. at 1296.
[1246]*1246d. The District Court’s Handling of the Record
i. The District Court’s Reliance on the ACLU’s Expert Declarations
Finally, we note our recognition of the district court’s uncritical acceptance of the bare assertions contained in the ACLU’s expert declarations — particularly in reaching conclusions outside, or even in apparent contradiction to, the documented historical record.
This perfunctory reliance was especially pronounced in the district court’s deconstruction of the Comstock laws. The mere existence of both federal and state Comstock laws- — especially the federal Comstock Act, which expressly prohibited importation and mail transport of “every article ... for ... immoral use” — seriously undermines the ACLU’s fundamental-rights argument under Glucksberg. Instead, the district court’s review of the Comstock laws led it to the conclusion that “[t]he popularity, legality, and ease of access to sexual devices like vibrators and dildos further demonstrate that the firm legislative respect for sexual privacy in the marital relationship extended to deliberate non-interference with adults’ use of sexual devices within those relationships.” Id. at 1286.
The sole support for this rather cursory conclusion appears to have been the assertions of one Rachel Maines, an historian and author, who submitted two separate expert declarations on the ACLU’s behalf. R3-56, Ex. A; R4-84, Ex. 4. Her declarations offered criticism of the Alabama statute going well beyond her specific expertise and delving into the legal and policy dimensions of the case:
Laws like Alabama’s that target the appearance, packaging or marketing of [sexual] devices, rather than their functionality, thus do not prevent or mitigate the supposed “evil” of “commerce of sexual stimulation and auto-eroticism, for its own sake” (Brief of Alabama Attorney General, 21). Their effect is merely to benefit one set of retailers (drug stores, health food stores, and discount houses such as Walmart, GNC and Target) at the expense of another (marital aids vendors).
R3-56, Ex. A at 18-21.
On the historical record, if devices “designed or marketed as useful primarily for the stimulation of the human genital organs” represent an evil and/or a moral threat to the citizens of Alabama, the state has been remarkably dilatory in making this discovery, having waited for something more than two and a half millennia from the invention of the dildo and more than a century from the invention of the electromechanical vibrator to legislate against them. Apparently unconcerned about the availability of vibrators to consumers beginning in 1899, and even about their use in the production of orgasm in women, for which there was ample evidence by 1930, the state did not act against these devices until a small percentage of them took on anatomical forms, and until they began to be associated with a new interest in orgasmic mutuality in heterosexual relationships. Significantly, Viagra, which enhances sexual experience for men but not necessarily for women, is legal by prescription in all states, including those with laws against vibrators and dildos. As an historian and as a citizen, I fail to see what legitimate purpose is served by institutionalizing an hypocrisy in which the sale of a standard and traditional therapeutic device is rendered unlawful by sexual references in appearance, packaging or marketing.
Id. at 23-25.
Although Maines’s statements suggest an agenda inconsistent with an unbiased [1247]*1247and complete historical presentation, the district court nevertheless repeatedly relied on her factual assertions, usually without any independent verification. We note several typical examples:
• In downplaying the historical significance of the Comstock laws, the district court emphasized that “sexual devices were not the impetus for the so-called Comstock Acts.” Williams III, 220 F.Supp.2d at 1286. The only support for this statement was Maines’s declaration statement that “vibrators and dildoes [sic] were not significant motivations for the passage and enforcement of the Comstock Act.” R4-84, Ex. 4 at 2. However, we find in neither Maines’s declaration nor the record elsewhere any evidence — aside from Maines’s bare assertion — of the actual motivation behind passage and enforcement of the Act.
• The record before the district court contained evidence that, according to records maintained by the New York Society for the Suppression of Vice, between 1871 and 1881, some 64,836 “Articles of immoral use, of rubber, etc.” were seized under the Comstock Act and other anti-vice laws. See Anthony Comstock, Traps for the Young 137 (Robert Bremner ed., Harvard University Press 1967) (1884). The district court, however, dismissed this evidence by quoting Maines’s claim that these “were almost all contraceptives.” Williams III, 220 F.Supp.2d at 1286; R4-84, Ex. 4 at 3. Although our own review of the record confirms that the articles “of rubber” likely represented many condoms, our concern is the district court’s casual dismissal of contemporaneous documentary evidence in favor of retrospective, and unsupported, characterizations of that evidence. Further, although Maines cited several authorities for her assertion, our review of her sources finds no support for the conclusion that the referenced articles “were almost all contraceptives.” 15
• The district court’s central holding— its discovery of a constitutional “right to use sexual devices like ... vibrators, dildos, anal beads, and artificial vaginas” — was based largely on unsupported statements from Maines’s declarations. Williams III, 220 F.Supp.2d at 1296. In divining this right, the district court concluded “that history and contemporary practice demonstrate a conscious avoidance of regulation of [sexual] devices by the states,” Id. This conclusion was based on the “emergence and widespread acceptance” of the electric vibrator, id. at 1283, and “[t]he popularity, legality, and ease of access to sexual devices like vibrators and dildos,” id. at 1286. These findings in turn relied on Maines’s declarations, particularly her assertion that “[v]ibrators remained legal throughout this period, and were mailable matter under the Comstock laws of 1873 — 1914.” Id. What both Maines’s declaration and the district court’s opinion omit is the fact that, according to Maines’s own writings elsewhere, the vibrators available on the market during this period were general purpose vibrators marketed for non-sexual [1248]*1248uses, such as massaging the hands, face, back, and neck.16 The fact that these general purpose vibrators were legal and mailable is hardly probative of the legality of sexual devices as sexual devices.
Because of our conclusion supra that the constitutionality of Alabama’s statute does not hinge on the enforcement, or lack thereof, of the Comstock laws, any error by the district court in its incorporation of Maines’s litigation-motivated and litigation-tailored assertions was harmless. Nevertheless, the district court’s truth-seeking duties should have compelled it to go behind Maines’s assertions and satisfy itself of their reliability before relying on those assertions in recognizing a new fundamental constitutional right.17
Moreover, this uncritical reliance on Maines’s assertions appears to have been typical of a larger pattern. For example, the district court’s history and tradition discussion was largely a paraphrased version of the ACLU’s motion for summary judgment and its factual support appears to have consisted entirely of the ACLU’s pleadings and selective appendices of historical interpretations of sex throughout American history. Of the 104 supporting footnotes in the district court’s history and tradition analysis, 99 were citations to these pleadings and appendices.
ii. The District Court’s Reliance on Alabama’s “Concessions”
The district court’s rationale for its wholesale adoption of the ACLU’s evidence appears to have been its mistaken view that the Alabama Attorney General had conceded the ACLU’s evidence on the history and tradition question. The district court, as preface to its Glucksberg history and tradition analysis, stated that “the court notes that it is extremely significant, if not dispositive, that the Attorney General concedes that ‘there is little evidence to show that sexual devices, or consensual sexual activities in general, have historically been subject to governmental regulation.’ ” Williams III, 220 F.Supp.2d. at 1277 (quoting Attorney General’s Memorandum in Support of Motion for Summary Judgment, at 16).
[1249]*1249This not only misquoted the Attorney General’s actual language, but mischarac-terized it as a “concession.” In his memorandum supporting his motion for summary judgment, the Attorney General had devoted a section to describing Vietorian-era proscriptions, and enforcement thereof, on sexual devices. R3-78 at 14-16. The following section began, “Although there is little additional evidence to show that sexual devices, or consensual sexual activities in general, have historically been subject to governmental regulation, there is also no evidence to show that these activities have been specially protected under the law.” Id. at 16 (emphasis added). That section went on to mention some of that “additional evidence,” such as efforts by the states to restrict sexual devices. Id. The district court’s omission of the critical word “additional,” as well as its out-of-context quotation of a prefatory dependent clause, significantly altered the meaning of a statement that, in proper-context, appears in no way to have been intended as a concession of one of the most significant and contested issues in the case.
Similarly, the district court elsewhere stated: “The Attorney General concedes that ‘there is no genuine dispute as to the historical chronology set forth by the plaintiffs’ experts,’ to the effect that there is a ‘history or tradition of state noninterference in persons sex lives.’ ” Williams III, 220 F.Supp.2d. at 1276 (quoting Attorney General’s Memorandum in Support of Motion for Summary Judgment, at 16).
In fact, the Attorney General conceded only to the historical chronology set forth by the ACLU’s experts and the liberalization of attitudes towards sex that this chronology demonstrated. R3-78 at 12. However, the Attorney General never conceded a “history or tradition of state noninterference in persons sex lives.” Significantly, the Attorney General’s use of that phrase appeared four sentences prior to the “chronology” concession and itself was part of a sentence disputing the ACLU’s version of history and tradition: “In attempting to demonstrate a ‘history’ or ‘tradition’ of state non-interference in persons’ sex lives, [the ACLU’s] experts have proffered a lengthy history of sexuality.” Id. The district court’s omission of the quotation marks surrounding “history” and “tradition” particularly distorted the Attorney General’s meaning.
The district court’s reliance on these “concessions” appears to have been sub: stantial. In announcing its holding that the ACLU’s evidence demonstrated a fundamental right to sexual privacy, the district court stressed that “[t]he Attorney General has conceded plaintiffs’ evidence in this regard.” Williams III, 220 F.Supp.2d. at 1294; see also id. at 1295 (“Given the breadth, depth, volume, and weight of that evidence, and the Attorney General’s concession, this court is compelled to agree [with plaintiffs-appel-lees].”); id. at 1295-96 (holding that, in light of the ACLU’s evidence “and the concession to this evidence by the Attorney General, this court concludes that plaintiffs have met their burden”).
To the contrary, the Attorney General’s pleadings, while not disputing much of the ACLU’s evidence about the liberalization of sexual norms, vigorously disputed both (a) the legal ramifications of that liberalization (e.g., that this liberalization, in itself, satisfied the fundamental-rights threshold) as well as (b) the contention that sexual devices had gone virtually unregulated throughout American history. R3-78 at 12-20. We conclude, however, that the district court’s reliance on these putative concessions was, at worst, harmless error. The issues that the district court treated as having been conceded per[1250]*1250tained to the existence of a fundamental right to sexual privacy, which, as we explained supra, was an over-broad framing of the inquiry in the first place.
III. CONCLUSION
Hunting expeditions that seek trophy game in the fundamental-rights forest must heed the maxim “look before you shoot.” Such excursions, if embarked upon recklessly, endanger the very ecosystem in which such liberties thrive — our republican democracy. Once elevated to constitutional status, a right is effectively removed from the hands of the people and placed into the guardianship of unelected judges. See Glucksberg, 521 U.S. at 720, 117 S.Ct. at 2267-68. We are particularly mindful of this fact in the delicate area of morals legislation. One of the virtues of the democratic process is that, unlike the judicial process, it need not take matters to their logical conclusion. If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter. On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases — including, for example, those involving adult incest, prostitution, obscenity, and the like.
The dissent eloquently quotes Justice Brandéis in its opening passages. We find merit in the wisdom of Justice Felix Frankfurter in his concurring opinion in Dennis v. United States, 341 U.S. 494, 525, 71 S.Ct. 857, 875, 95 L.Ed. 1137 (1951), when he observed:
Courts are not representative bodies. They are not designed to be a good reflex of a democratic society.... Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.
For the reasons we have explained, we hold that the district court committed reversible error in concluding that the Due Process Clause “encompass[es] a right to use sexual devices like ... vibrators, dildos, anal beads, and artificial vaginas.” Williams III, 220 F.Supp.2d. at 1296. Moreover, we reject the ACLU’s request that we redefine the constitutional right to privacy to cover the commercial distribution of sex toys. We REVERSE the district court’s grant of the ACLU’s motion for summary judgment and REMAND to the district court for further proceedings consistent with this opinion.