we'll hear an argument this morning in case seventeen ten ninety one tim versus indiana was or what it mr chief justice and may please the court the freedom from excessive fines applies to the states because it is deeply rooted in our nation's history and traditions and fundamental to our scheme of ordered liberty the state of indiana appears not to dispute that straightforward answer to the actual question presented and for good reason the freedom from excessive fines easily warrants incorporation alongside the eighth amendment other protections this court has said just that five times over the last thirty years without addressing the incorporation question directly the state asked whether the cla applies to the states the same way that it applies to the federal government but fifty years of incorporation precedent holds that incorporate a bill of rights protections apply to the states that exact same way that they apply to the federal government the court recognized in mcdonald the non unanimous jury in criminal cases is an anomalous decision that results from a one justice concurrence in the apple docket case and there's no reason as the court recognized in mcdonald for that to control when there's over fifty years of precedent beginning in malloy versus hogan map aguilar again in mcdonald rejecting that two track approach adopting the two track approach at this late stage would only invite further litigation about rights that are already incorporated when this court interpreted the fourth amendment right to be free from having your cell phone tracked in the carpenter case if my friend's argument were correct we would have to relate a gate whether that right applies to the states virtually all of the bill of rights with the one exception noted by justice ginsburg has been incorporated on the right by right approach used in mcdonald not on the application by application approach proposed there are a few others that have not been incorporated is that right oh that's true absolutely but that's either because they haven't been addressed by this court like in the case of the third amendment right against according soldiers or because the court recognized in mcdonald they long pre date the air of selective incorporation so i think it's possible that if the right side issue and bob listen hurtado were to come before this court today the results might be different but we don't have to get into that history here because the history on the question presented of whether the excessive fines clause applies to the states is clear but what is the provision in the constitution that you rely on the section one of the fourteenth amendment rather it's the component of of the liberty that substantively substantively protected by the fourth amendment stoop to squash yes your honor we also have an alternative argument under section one is privileges or immunities cla yes texturally justice ginsburg that would lead out non citizens but of course petitioner as a citizen and that could be a decision for another day it's also true that the fundamental and deeply rooted rights that are currently incorporated under the due process clause apply to non citizens and they would continue to do so regardless of the court's reasoning in this case well that you can see there's different arguments about whether in this i gather is the state's primary submission whether an excessive fines are prohibited and whether  civil in room forfeitures are and i certainly understand the argument that the disproportionate excessiveness arguments would be quite different with respect to forfeiting the instrumentalities of the crime i mean argument could be made well that's always proportionate since it's the way the crime is accomplished i don't agree your honor because whatever might be said of historic in ram forfeiture practices forfeitures today like this one are fines within the meaning of the clause the court was unanimous on that point in austin and since then it has reaffirmed that point in the budget cage in case in the hudson case and most recently in co cash all of which rely on austin as a result state in federal courts today are course the argument there was not for the purposes we're talking about today in terms of incorporation and if the test is as it has been you know whether it's essential fundamental in all that you can see a distinction between saying ok you're going to be fined five hundred thousand dollars and saying yeah you're going to i mean the action is not against the individual it's against the asset into you will court when the court incorporated the second amendment right to keep and bear arms in the macdonald case it had rejected that right for one hundred forty years until the heller decision and then just two years later incorporated it against the states so there's no reason to require as my friend suggests should be required that that litigants show a historic pattern of the right being enforced and in any event as the court recognized in jurisdiction and pirate ships anymore it's about every person's property and every officer on the street now has the power to strip people of their property where your client was convicted of and offense that was punishable by a maximum of ten years imprisonment my correct twenty years in chris one years imprisonment and he was sentenced to six but it was it was suspended right that's correct there he was sentenced to home detention for one year and then five years of probation the minimum on that and for what it's worth judge todd in rule grant county indiana looked at this offense and the impact on the community and determined that it would be grossly disproportionate to strip petitioner of his property or even to send him to prison  and i think that's significant especially given that the indiana suppose the union a court of appeals affirmed that decision and the indiana supreme court didn't even address it because it didn't have an opportunity to reach the excessiveness question what have we said about the application of the grossly disproportionate stand well your honor as you know that the court in k g and articulated that standard for the first time and it hasn't had an opportunity to address it again so i mean in the context of imprisonment not fine oh absolutely or are under the cruel and unusual punishment clause that the court has articulated a very similar standard is the is the punishment grossly disproportionate to the gravity of the offense and there's nothing there's nothing radical about that you assess the particular circumstances of the case i mean i suppose if you ask people do you think six months is an excessive sentence for whatever it was three counts of dealing in you  know hazardous illegal drugs and many people might say no it's only when you say well the six months too much for that whatever the circumstances were here the much i want to say in significant but lighter  quantities involved what do you look at the particular circumstances or what the crime is the crime is not dealing with tiny amounts of drugs the crime that he's convicted for is much broader than that your honor excessive interim forfeiture but blackstone recognized that as well there's no way to assess the disproportionality to the gravity of the offense in the abstract by contrast the incorporation question that's before the court today is easy to assess in the abstract we ask ourselves not whether civil in room for future a right against excessive in room forfeiture is somehow deeply rooted and hence can be incorporated we ask  whether the freedom from excessive fines which has been recognized since the thirteenth century is incorporated and it's important to recognize that the indiana supreme court's decision in this case did not adopt my friend suggestion of simply saying that it doesn't apply in room forfeitures the citizens of indiana today don't enjoy protection from excessive fines of any kind and that's true of the citizens of three other jurisdictions as we pointed out in our petition for s if we were to assume for the sake of argument that imprisonment for six years would not be any from them in violation for this offense what would that say about the fine of forty two thousand dollars is it possible that six years imprisonment is not an eighth amendment violation but a fine of forty two thousand dollars is an eighth amendment violation well your honor we have to know all the circumstances of the case and if we're talking about this particular case i think it's clear that the judge on the ground that was closest to this crime felt that it was grossly disproportionate to the gravity this is a first time offender who was caught dealing a small amount of drugs and the vehicle here was not but we're talking about a federal constitutional standard not a court whatever sentencing philosophy any one of thousands of judges in the united states or impose sentences might think is the right sounds for a particular crime in a particular offender absolutely your honor but the question presented here is merely whether a defendant in any case has the right to interpose a defense under the excessive fines clause we're not asking the court to articulate a new standard of excessive we're not asking the court to determine that this forfeiture was or was not excessive we're merely emphasizing that part of the purpose of the fourteenth amendment was to guarantee to all three hundred thirty million americans a right to a defense under the excessive fines clause indiana denied petitioner that defense and the court should reverse and remand two state courts here struck down this forfeiture held that it was punitive under austin believing that the clause already applies to the states and believing that this forfeiture would be excessive the indiana supreme court did not address the excessiveness question it quote declined to find or assume incorporation into this court quote that the state did away with innocent owner defense so that the forfeiture was against the innocent owner would that be punishment i think under our my reading of come syria and says this is my property i didn't commit a crime they say it's too bad well the property did i think your honor it's safe to say that that could be deemed excessive if we look at the bennett's case that case is about a co owner who didn't commit the crime and the court held that as a matter of federal substantive due process that cohen or did not have a innocent owner defense but that does not dictate that the  that that cohen or couldn't articulate an excessive fines defense and blood well if it's not punitive against him it's the property that is being charged with having been involved in a crime i see your question your honor i think that if someone had done nothing wrong let us say that someone steals my car as i'm walking into a target commits a bank robbery and the police seized that vehicle quite righteously i mean as a practical matter of course the police are going to return the vehicle to me but if the state were to go so far as to institute for future proceedings against that person as justice kennedy recognized in his austin concurrence there would be several serious constitutional problems with that and it may be that in those circumstances  where i'm entirely blameless that the court would hold that there is a substantive due process right to reject that forfeit your or the court would find it to be grossly disproportionate to the gravity of the nonexistent defen i'm so i think bennett's can be easily reconciled with this case particularly when when the court looks at justice stevens is dissent and bennis which with two other justices points out that mrs been is didn't bring an excessive fines defense had she done so at least those three justices would have been inclined to rule in her favor so you're saying even if it's a classic in rem forfeiture of a kind that's been known for centuries that would potentially violate the excess fines cost yes your honor that this court has rejected the idea that states can work their way around the excessive fines clause based on nothing more than a label this is not a labeling game the court looks to the substance of what's happening it nature then the defense can be raised and that makes sense to ation with jail prison i have a vague recollection often such recollections are incorrect but i have a big recollection that there was a case in which california's three strike law was applied to sentence to life a person whose final offense was stealing a dollar golf club and i think the majority said no we're not going to look at that because it's too complicated and i write does that ring a bell but if that still is the law so i think it is it's something anomalous about saying by the way if you took his mercedes we will look to see whether that's disproportionate to taking a golf club but if you send him to jail for life we won't now have a have i stated this correctly and if wish how do we deal with it well you are i think the most relevant authority here is the harm and decision in which this court similar to the situation you're describing allowed the person to be sentence from a person from michigan to be sentenced to life without the possibility of parole grabbing six hundred fifty grams of i believe it was cocaine and the court reasoned that look that amount of cocaine could be broken up and easily used for distribution so it's appropriate in these circumstances to punish that harshly here we're dealing with two granted by question really is are there cases where we have said that the punishment is just proportionate not it seems odd and i think i'd have to think about it or maybe we should address in some way your argument as to why there is that difference your honor i think if we posit that difference yes it's a great saying there is a difference but between sentencing a person for stealing a golf club life a life sentence i think that no there is no difference and that if there is gets me back to the question i was asking before if six years imprisonment is not a violation of the eighth amendment and you know you said it might be i think you might have something of an uphill fight to prove that but three years two years how how low would the ceiling of permissible term of imprisonment have to go in order to justify holding that a fine of forty two thousand dollars is a violation of the eighth amendment what is the equation between the monetary between dollars in the four and a fine and time imprisonment i'm your your honor  although it might be unsatisfying the court has said repeatedly that there is no equation in that there can be no equation because these situations are inherently real world in nature and that courts have been directed specifically with respect in room for features in the in case you assessed all of the circumstances and as justice ginsburg was assisting me it's absolutely the case that the court has to look at not just the value of the property not just the gravity of the offense but also the offender himself and his the fact potentially on the community if you remains at large there's nothing new about that trial judges every day assess in all of the circumstances what is an appropriate punishment and all we're saying in this case were several step or steps removed from the question presented right now all we're saying is that you have an excessive fines defense that you may raise so we are several steps removed but i think that the import of some of these questions is look we've made it awfully awfully hard to assert it disproportionality claim with respect even to imprisonment and if it's at least equally hard to assert a disproportiona with respect to fines we could incorporate this tomorrow and it would have no effect on anybody that's potentially true your honor but the standard of assessing this type of economic sanction it's important factors other courts use others in an appropriate case with full briefing and a comment from a miki this court can and should decide that important question but this case merely insists that petitioner like every other american has the right to raise the excessive fines defense and that the indiana courts can then assess the situation well but you're asking us to you know buy a pig in a poke in other words you're saying incorporate this but you know we're not we don't even know whether it means we're going to decide whether ten thousand dollars is enough for twenty thousand dollars or if we're simply going to say something along the lines of harmala in which it's not just that it's whatever so many grams it's that it's the third offense and so that's that's what's the protection against that is fundamental to to a civilized society or whatever the standard is that we've been applying and you say don't worry about what it means just incorporate it and then figure it out later on your own i'm not saying don't worry about it i think that this is a pressing question and in appropriate case i think that the court does need to take it up but if we look to the harman decision justice scalia's opinion in that case points out that there is special reason to be concerned when the government uses economic sanctions to punish a person because unlike all other forms of punishment whether it be life imprisonment justice alito or or three strikes law those cost the government money but these types of forfeit is in fines raise revenue and there's good reason there's good history for being concerned about the sovereign power to raise revenue using punishment but let me give you two examples suppose your client instead of costs like a quarter of a million dollars with excessive fine clause applied differently and those three cases no your honor it applies the same the same with the result be different if you had been driving a  car with a book value of fifteen hundred dollars with the result in different well your honor we would have to know more we would have to know what the gravity of the offense was we know it it's the offense we have here i don't know what the offenses i think in this instance any for iture of the vehicle would be excessive because this vehicle was not instrumental to this crime it was incidental it's no surprise that in rule indiana that a person might drive somewhere to meet with someone and that doesn't mean this vehicle somehow like a pirate ship that had been sailing the high seas that's contrary to a lot of civil forfeiture law i mean this was an instrumentality the crime this is how we got to the deal place and how we established that that would necessarily not be excessive but does it make the difference we've been talking about the value of the the item what if the person doing this you know was a multi millionaire forty two thousand dollars doesn't seem excessive to him was it and yet the idea that you can't take from a man so much that he would be destitute and the court has suggested that in in the case that that might be a factor  it but it specifically declined in bhaji cagey and to articulate factors recognizing that this is highly can textual highly fact intensive and something that ought to be developed in the lower courts before this court pronounces any particular test is the on the federal side how does this work what kind of forfeiture is have been held unconstitutional have any yes your honor the second circuit spahn hof decision is helpful that case dealt with a wife who was unaware that her husband was called evading marijuana in the family home and the second circuit wrestled with that case articulated factors for assessing excessiveness and determin part and not in fall or that a person who is particularly dependent on their vehicle say they're a mother and it's the minivan that they used to get their children to school that a trial judge might determine that that is constitutionally excessive your honors if there  further questions i'd like to reserve the balance of my time thank you counsel general fisher mr chief justice in may it please the court in rome forfeitures have been a feature of the anglo american judicial system for hundreds of years but until about twenty five years ago no court had held that they were subject to a proportionality limitation while other constitutional doctrines may enter on it before we get to the in ram argument and its application of this case can we just get one thing off the table and we all agree that the excessive fines clause is incorporated against the states whether this particular flying qualifies because it's an interim forfeiture another question because we at least get the the theoretical question off the table whether you want to do it through the due process clause in the good history and tradition you know gosh excessive fin guarantees against them go back to magna carta in twelve twenty five the english bill of rights of the g a declaration of rights pretty deep history whether one wants to look at privileges or immunities you might come to the same conclusion here at least i can at least agree on that but two responses to that first well i think i think a yes or no it probably a good start and well i think with respect in pursuit of the answer is yes but you have to take into account and this is the methodology of macdonald you have to take into account the history in traditions of the right being cl now the right being claimed here is a right of proportionality used in ram forfeitures the court has to grapple with that history which is really not seriously contested that that was never subject but whatever the excessive fine clause guarantees we can argue get it out of scope incorporation the bill of rights really come on general my peers well i think what you have to take into account though is the history and you have to take into account all the history not just the in persona history the in ram history for the clause why do you have to do a count of the history to pick up on justice course which is question is it just too late in the day are you that any of the bill of rights is not incorporated the court has never incorporated right against the states where it could not conclude that there was  a relationship with that was fundamental or and deeply rooted in our history into that on point aren't all of the goal rights at this point in our conception of what they stand for the history of each of them incorporated well with fairness not with your consent respect your concession approval well that would that's one thing that's interesting about that footnote is that it's a we can indorsement as i think we can imagine it said that austin was justified by reference to some difference between common law forfeitures and so called modern forfeitures well austin didn't depend on that distinction and that distinction does not exist the so called modern day forfeitures are materially the same with respect to the conceptual nature of them that they are against the property and not the person with respect to the procedural nation nature which is civil and not criminal  if i understood your response to just discourse such it was essentially that we can't answer the question wholesale that we have to look at the particular right being invoked so i guess the question is do you have a theory about how we go about dividing up rights you know how do we decide that we're looking at a particular right against in room forfeitures as opposed to a general right against excessive fines well i think macdonald gives us some instruction on that macdonald talked about not simply the second amendment but about the right to self defense in the home other cases the incorporation this court has decided have approached for example reasonable as under the fourth amendment as distinguished from you know the exclusionary rule there are there are precedents that do that but there is no precedent where the court has incorporated a right that was not deeply rooted or fundamental i mean that seems to make the incorporation question sort of indistinguishable from the substantive question i think you have to come to grips with the history whether you decide whether you call it incorporation or you call it the substantive merits question we've given you three different ways to do this the most historically sound way is to overrule austin you don't want to do that your counsel you know if you just just to pause on that for a second you know the india supreme court didn't address the merits questions didn't address any of this forfeiture in ram in person just said that the excessive fines clause is not incorporated period why isn't that just all and then you can go make these arguments about why it doesn't apply to this case already meant to do you really want us to answer the merits questions to well the problem with relying on the merits question in terms of whether austin is correct is that austin binds the lower courts they don't have an opportunity to revisit that this court does the matter has been it's been three months so this court's not inclined to revisit austin you're going to lose not just the incorporation question but the merits question to goodall's work i'm not sure what you mean by the merits question in that regard with respect to whether this is forfeiture is excessive certainly that discussion would win that argument would take place back in the indiana supreme court with respect to the meaning of austin whether auster remains good i think that's only something this court can affect and i think with respect to the broader question even if the question justice kagan is is is the excessive fines clause as a whole and not something where we're going to slice and dice the right we still have to take into account that history even room for future and we don't have any examples of incorporation where there is this substantial history that calls into question the fundamental or deeply rooted things well with respect to shaffer i think what's critical there is the word quasars because of course it was not a straight up in red proceeding we're talking about the ability to seize assets for a case where there had been an in persona judgment and that is that distinguishes proceeding you've got other situations double jeopardy we already have a distinction the double jeopardy context where in ram is critical so i don't think we can just wave you know wave it away what is the difference between the approach that you're advocating here and the way the court used to address the question whether rights protected by the bill of rights applied to the states before it began the process of incorporating provisions of the bill of rights one by one and it said that what applied to the states were those rights that were implicit in the concept of order liberties so there was a two tiered system and that seems to be what you're asking us to go back to with respect to the excessive fin there a difference i don't know it could you explain what is the difference between those two approaches yes indeed we're not suggesting some sort of systematic differential treatment in mcdonald the court acknowledged that the differences that exist between the  bill of rights rights that apply to the federal government in the states are as a matter of stare decisis now here what we're saying is if that if the in the analysis because of the lack of historical roots of the  that be the difference that has to be based on the stare decisis of austin if austin remains good law only because of stare decisis that puts it in the same category as those other cases it's not a systematic federalism discount if you will on the right it's awesome were over ruled them though the rule as applicable to the federal government would change as well that's right that's right we would be on the scene still not seeing the difference between well that the difference would be if you look at austin if you were to look at austin and say you know what austin was dead right historically this is historically rooted and it is fundamental that i don't think there's any grounds for us to say that there should be that the outcome should be any different between the states the federal government if you look at austin you say you know what that's questionable but we don't want to overturn it because  we don't like heller but at least let's just keep it applicable to the district of columbia and the federal government and not apply it to the states well i think that was a different for a different reason in that the acknowledged the distinction with bumble as an hurtado being purely a matter of stereotypes isis and that's the basic principle work we're calling on here which is if austin remains good law only because of stare decisis that doesn't make this a systematic sort of discounted right  that just means that you know you've got as a question a question of the court's astri some other way you have to look at the situation but i think it's critical to understand also that the idea that somehow the so called modern in rome forfeitures are different from history because of the existence of innocent owner exceptions is also not correct innocent on are exceptions did exist within the last couple of hundred years indeed authorities contemporaneous with the ratification roughly contemporaries with the fourteenth amendment acknowledged that there there might be innocent or defenses the treatise by bishop says if the law in its clemency permits an innocent order to make a claim that does not convert into punishment that which was into question that they were not punishment in your view and in room civil forfeiture is not an excessive phone is that right is that is what is to happen if a state needing revenue says anyone who speeds has to forfeit mercedes or a special ferrari or even there no that there is no there is no excessive fines issue there i what i will say in what i think is important to remember is that there is a constitutional limit which is the proof of instrumentality the need to permissible under the constitution to forfeit the big guy for speeding and by the way it was only five miles an hour yeah above the speed limit well you know the answer is yes and i would call your attention to the yes it's for  apply the bill of rights to the states so in all of the situations before we apply the bill of rights to the sui for we apply the bill of rights to states they did things that under incorporation were unconstitutional and in most of our cases they were history going both ways some states did some states didn't so really what the issue that we have to look at isn't is where has our understanding come to in terms of a particular bill of rights and in austin we said it is a long part of history that punitive sanctions cannot be excessive and justice scalia said it very well for the eighth amendment to limit cash lines while permitting permitting limitless in kind assessments would make little sense altering only the form of the star chamber abuses so at a certain point in austin we looked at what had happened to run for for church and realize that we had just changed the star chamber for i don't actually understand your argument based on history because without incorporation the history's going to be what you wanted to be the real question is the fundamental right are we trying to avoid a society that's like the choice star chamber and if we look at these forfeitures that are occurring today and that's what boston documented many of them seen grossly disproportionate to the crimes being charged so how do you deal with that how do we avoid a star chamber return well the history that's relevant is not simply the history of what states were doing it's also the history of what the federal government was doing and there was no suggestion that before  civil rights amendments were passed that the federal government with all of its harsh and run for fissures was somehow violating the excessive fines clause there was no proportionality limit there now i think with respect to understanding you know how we view today's forfeitures you can't distinguish what's happening now from historic history when historically an innocent owner was never you know not entitled to a defense how how would we ever say and i think justice scalia makes this point how would we ever say that a forfeiture as to an innocent unanimous well and i guess i'm asking you given the concession by the state before the indiana supreme court that the forfeiture here was  do don't overrule austin and you want us to apply not just the question of incorporation but go to the merits don't you lose no i don't think we lose because i don't think the question of punitive and remedial  something that austin barred from help or that test as has been overruled as to as to double jeopardy now if it remains the test with respect to something that whether it's in compass within the excessive fines clause there still has to be the the analysis i mean we have to figure out what does your means but you can see that it's punitive now it becomes a question of proportionality but i don't think you can take these on a case by case basis i think it's you have to say what is the right being claimed it's not whether this particular forfeiture was punitive or not it's a question of i suppose would be if that's if it's the magic word punitive we could just change the statute but i don't think that would be a very satisfactory result i think what the court is probably looking for is some better way to describe what is included within the excessive fines clause something more substantive than that and the cases after austin all make clear that this distinction between punitive and remedial simply falls apart you know the idea of deterrence and austin thought was to if it's deterrent that makes it punishment well the courts now rejected that in hudson and in other cases and in budget conscious so that part of the test doesn't hold up anymore either so i think you have to go back and look at this entire you know whether it looked very critically at the idea that there's something different about modern day forfeitures there really is no distinction over tiriel distinction between them and what was happening at common law and certainly what was happening in middle of the one nine hundred century so i think the other critical thing to bear in mind here is that if we get into the idea that we're crime then those precedents i think simply cannot stand any law so i think you're in this situation where you're confronted with which we you know which source of doctrine are we going to override well are we going to be wiping all that away or just leaving that for another day i mean it it what i guess this gets back to justice or switches first question i mean the question presented is does the excessive fines clause you know is it incorporated need to mimic and i guess your argument is seems to that this isn't an excessive find in fact it is in the fine at all well you can do with that later right well first of all of course it's in front of you now so why not it's been in it's been briefed and the lower courts can't come to any opposite conclusion so you know it's not going to percolate but the second point is that even if we were to say we're not going to revisit austin the history of the right is still critical macdonald tells us that it has to inform the question of incorporation and the court has never incorporated where there is that kind of history that is foursquare against the right that's being claimed and i think that that is the going to have to end for you just you just want to make sure that in our opinion that we say for ruling against you that the excessive fines are incorporate or incorporated under incorporation doctrine and not say civil in room forfeitures are in corp rated well but if that's all the court says unfortunately the lower courts are going to then read austin and say well you're in civil and roman so that's part of excessive fines and when are we ever you know going to have a court that's going to create any kind of of you know dispute on that point just so i'm clear you're asking us to overrule last and i think that's the most the only way that you can win with a straight face no i don't know with a straight look i think that's the most historically sound thing to do but i don't think that that's if you're unwilling to do that that cannot be the end of the analysis on incorporation because again you have to take into account under your preceden the history of the right being claimed not just some of the history not just the in persona history but also the enron history and there's a again it it just seems as though there are two questions and one question is incorporating the right and the other question is the scope of the right to be incorporated and really what your argument is about the scope of the right well and i'm sure we can incorporate the right without saying a word about the scope of the right now as you say austin says something about the scope of the right and that's a problem for you but but you're really asking us to talk about the scope of the right aren't you well certainly that would that's what we think is the most historically sound thing to do but even if you know assume that a way and we're just looking at what this is whether we're going to incorporate the right the test for incorporation is historically rooted or or fundamental to ordered liberty and to answer that question you have to look at the history of the right if the right includes well that's what i asked at the beginning what's your theory for how you define the right and which history you look to because you're really suggesting that we don't take the right wholesale we try to chop it up and i guess you know there are always going to be questions about the scope of the right to be incorporated and so far we have not addressed those questions when we have decided whether to flip the switch of incorporation or not we've understood those questions to be distinct and and to be questions for another day and why is it that you're saying we should not use that pretty standard practice and instead start chopping up the right at the incorporation stage we think that's one way to do it we don't think that's the only way and if indeed the court doesn't want to chop up the right and it wants to just look at the excessive fines clause it has to look at all the history and that includes the history of in ram and our view is that history means that you can't incorporate if if the history is only in persona then i don't think there's any serious question about incorporate but if the history includes the in read history the much larger history the much the largely uncontested history that is that then there is no precedent for incorporating in that circumstance where is that there is that amount of history standing foursquare against a substantial number of applications of the right it there just isn't anything to look to on that you cited mcdonald's as an example earlier of a case where the court had in your view chopped up the right as incorporated are you saying the second amendment is a different scope after mcdo no no no no what i'm saying is that the methodology of mcdonald when doing the incorporation analysis was to ask what's the right being claimed and the right being claimed was the right is some ability to take cognizance of stare decisis without sacrificing the necessary historical analysis at the time of macdonald and at the present time all of that the court has held that the second amendment right protects the right to have a certain firearms in the home for self defense hasn't gone further but if this court were to go further let's say in a kick in another case involving the district of columbia and said that the right includes something more than that would we have to go through another round of incorporation inquiry to determine whether this broader right applies to the state or would it follow automatically under mcdonald think particularly given the methodology the court would use in coming to grips with what that new right is it would likely just fall i don't see there would be any need for because it would be essentially the same analysis anyway but you you know i think the idea here that you can simply look at one part of the history without looking at all of it you know i don't think that you can look to macdonald or any of the other presidents that have guidance for that you have to you can't just ignore it you have to do something with it you have to take it into account  whether that means chopping it up or you know grappling with the right as a whole and saying that that history counsels against incorporation or simply overruling austin that's one of these ways has to take into account the interim history  has gone through the history and ecology and and largely shown that austin was wrongly decided there isn't any serious reliance interest i think that would mean that there was going to be some sort of disruption if austin were over rule so you know the normal factors the court takes into account with respect to its precedents i think are not barriers here to over overruling austin and the other thing i think you know you almost can't get away from the prospect of at least implicitly overruling precedence no matter what you do here if it's not going to be austin then it's going to be the innocent owner cases bennis then auster all those precedents and i think it's instructive here that my friend cites the to the dissent in bennett's acknowledging that if you're going to incorporate a grossly disproportionate analysis then really what you've got do a start getting away from the innocent owner you know the lack of it in a required innocent owner exception but that's going to become something that is going to have to be part of that analysis concern was you know what maybe really what it comes down to is simply this idea of nexus and the nexus test that he was describing there is essential what we're describing that would be the proper test under due process you know is there a connection between the property and the offense and we think that belongs in due process but justice scalia i think was on to something there when he was acknowledging that there really has to be a different treatment given all that history given all those those precedents of the court there has to be differential treatment and at the end of the day i think you know what you've got to do here when you're looking at this incorporation question is not simply be you know i think you know cavalier about the idea of this is easy to incorporate you don't want to do that i think without taking a very careful look at what is the right that you're actually incorporating and does it fit with the doctrines of the history of the court and all of the ways that it's handled incorporation before and if there's nothing else to read my time thank you thank you general mr hot at four minutes your honour's this case is about constitutional housekeeping five times over the last thirty years this court has remarked that the freedom from excessive economic sanctions should be understood to apply to the states in hall in kennedy in roper and cooper industries and in booth all that remains to do is to express lee so hold my friends approach by contrast is radical he asked the court to overrule austin the unanimous decision that has been on the books for twenty five years that was reaffirmed in hudson in bhaji k g and and again in co cash and that case looked at the same history that my friend urges this court to review here it would allow if the court were to overrule austin governments at all levels to impose a constitutionally excessive civil and rim forfeitures based on nothing more than this is not a labeling game it would also revive the so called two track approach that this court has rejected now for more than fifty years so even if we imagine that that the court would take such a radical approach it it would break with for example the commercial speech doctrine which there was a long history of commercial speech activity in this country before the hundred seventy s decision in which this court held that there is a commercial speech right and did so in a case against the state without even pausing on the incorporation question so you know one for a it shows that this statute is more punitive than the statute at issue in austin because it required to call the state and its case in chief to prove that petitioner knew about or should have known about the crime at issue here and that is not true under twenty one u s c eight one the statute at issue and austin both statutes have innocent owner defenses so if anything this is more punitive not last if the court has no further questions thank you thank you counsel the case is submitted