Third Amendment Lawyers Association

by Jay Marshall Wolman

In asking what to do with this blog, Dan suggested that we blog about the Third Amendment.  Marc actually blogged about a Third Amendment case here and here.

If people thought Second Amendment jurisprudence was thin (at least until DC v. Heller rolled around), Third Amendment cases are fewer and further between.  The text reads:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Based on the text alone, it is understandable, then, why it would rarely be called up.  When the country was founded, the memory of British troops commandeering a house was fresh in the minds of the citizenry.  Battles were fought in the continental United States.  Barracks were few.  As a practical matter, we now have sufficient domestic fortifications (bases, forts) that the need to commandeer a house, especially in peace time, seems unnecessary.  And, we haven’t fought a war on the home front in quite a while.  In short, there would be little cause to call upon it.

However, strict textual jurisprudence sometimes gives way to more expansive interpretation.  Thus, although First Amendment is silent about the States and only discusses what Congress cannot do, its incorporation as a fundamental right under the Fourteenth Amendment forces us to basically treat “Congress” as any legislature.  In a similar vein, then, some have looked beyond the U.S. Army for what a “Soldier” is.

In Engblom v. Careythe U.S. Court of Appeals for the Second Circuit actually found that the Third Amendment was a fundamental right, incorporated under the Fourteenth Amendment.  It did so to find that National Guardsmen were “Soldiers” in a case involving a prison guard strike, where the prison guards were kicked out of their official housing so that the National Guardsmen could protect the prison during the strike.  (Though the case established the right, since it was a new decision, it wasn’t deemed to abrogate qualified immunity on remand.)  However, in the Nevada case Marc blogged about, Mitchell v. City of Henderson, municipal police officers were not deemed to be Soldiers.

The Third Amendment has also been used as a supporting argument.  Most notably, in Griswold v. Connecticut, the right to be free from quartering was among the penumbra of enumerated rights identified by Justice Douglas to cobble together an implied fundamental right of privacy.  But, realistically, there will be few direct Third Amendment cases, though as police militarize more (Mitchell is just one case about a SWAT team), there may be greater opportunity for such challenges to be presented, clarifying the distinctions between militarized police and the National Guard.

In addition, Glenn Reynolds suggested that electronic surveillance might be susceptible to a Third Amendment challenge.  I am not sure I agree that quartering a bug or spyware is the same a quartering a soldier.  One represents a physical imposition, though both do intrude upon the privacy of a home.  For a proper challenge, though, one would need a case where national security interests are implicated, rather than basic policing (which more implicates Fourth Amendment rights).

For further reading, I commend Prof. Reynolds’s paper as part of the recent Tennessee Law Review Third Amendment Symposium; and, until a new case comes along, then maybe you might want to put a copy of the published symposium on your shelf.  Those of us waiting with baited breath should band together to remain vigilant and look for opportunities to bring more 3A cases.  Thus, it is with great pleasure that I announce that I am forming the Third Amendment Lawyers Association.  We are presently looking for a headquarters; your house looks pretty good.

**UPDATE** The Website for the Third Amendment Lawyers Association (ÞALA) is now live!



6 Responses to Third Amendment Lawyers Association

  1. Dan says:

    Thanks for considering my suggestion. As to your analysis, I am intrigued with the idea that SWAT can be considered “soldier”. What if the SWAT teams get all their gear from 1033 program, and what if they get their training primarily from private security companies composed of ex-military personnel (think Blackwater), would they be considered soldiers? Is the distinction a matter of degrees, or more?

    What about the Coast Guard? I understand that half of its personnel are civilians and half wear uniform and abide by the UCMJ. Though, as I understand it, the Coast Guard is exempt from Posse Comitatus, and perhaps it may also be exempt from the 3rd amendment as well?

    • Jay Wolman says:

      My inclination toward a functional test, to distinguish military vs policing, would fail in the face of the 2nd Circuit case; the National Guard was serving a more policing function. Thus, perhaps a mission or purpose test, in which case SWAT would always be deemed to be policing.
      The Coast Guard is a uniformed branch and in times of war falls under the auspices of the Navy. Posse Comitatus is statutory; the Third Amendment is constitutional, so I would expect no exemption.

  2. Angie NK says:

    How about the Ninth Amendment? Ol’ 9 never gets any love. It’s all “Hey, just cuz we say you’ve got these rights doesn’t mean they’re the ONLY rights you have.”
    Anything interesting to say there?
    (This is fun, BTW. How about a post for each amendment, in order?)

    • Jay Wolman says:

      Actually, no. 9 gets cited from time to time as a kitchen sink argument. That said, I’ll probably take you up on your suggestion in the coming days.
      In the mean time, per my update, I went ahead and created a website for the Third Amendment Lawyers Association (ÞALA).

  3. […] a comment to my post announcing the formation of the Third Amendment Lawyers Association, reader Angie NK […]

  4. […] previously discussed, reader Angie NK asked for a post about the Ninth Amendment.  I digressed to the Fourth Amendment as I had some thoughts […]

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