Author Topic: Is this a novel approach to the 3rd Amendment?  (Read 4780 times)

Perd Hapley

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Re: Is this a novel approach to the 3rd Amendment?
« Reply #25 on: March 08, 2015, 10:57:31 AM »
The problem with this form of originalism is that the text of the Constitution has altered since. A fourteenth amendment has been passed for instance, applying many limitations first intended as a hold only on the Federal government and its troops to the states, for instance.

Moreover, if we are to apply the actual written text consistently, it often protects things that I'm quite sure the Founding Fathers would have been outraged by. That's not surprising. Legislators often write laws and find them being applied by courts in ways somewhat different from what is intended. That is common with any law.


Um, no. I'm not applying "originalism," or any other legal theory. I'm just telling you what the amendment says. I didn't say anything about the Feds vs the state, for example.

Here's the text of the law:

"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."

There are no penumbras in there. Nothing vague. It obviously prohibits a specific thing. Now, can you quit treating me like an obscurantist?
« Last Edit: March 08, 2015, 12:03:21 PM by fistful »
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vaskidmark

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Re: Is this a novel approach to the 3rd Amendment?
« Reply #26 on: March 08, 2015, 02:45:24 PM »
Ladies and gentlemen, we have an epiphany!


Where?

What?

Who?

[/Vinnie Barbarino voice]

Seriously, I'm serious.

stay safe.
If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege.

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They keep making this eternal vigilance thing harder and harder.  Protecting the 2nd amendment is like playing PACMAN - there's no pause button so you can go to the bathroom.

wmenorr67

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Re: Is this a novel approach to the 3rd Amendment?
« Reply #27 on: March 09, 2015, 01:24:12 PM »

Um, no. I'm not applying "originalism," or any other legal theory. I'm just telling you what the amendment says. I didn't say anything about the Feds vs the state, for example.

Here's the text of the law:

"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."

There are no penumbras in there. Nothing vague. It obviously prohibits a specific thing. Now, can you quit treating me like an obscurantist?

So now what is the manner prescribed by law?  I could see the FEDs saying that we are in a war on Terror so therefore Soldiers can be quartered.
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Perd Hapley

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Re: Is this a novel approach to the 3rd Amendment?
« Reply #28 on: March 09, 2015, 02:25:54 PM »
So now what is the manner prescribed by law?  I could see the FEDs saying that we are in a war on Terror so therefore Soldiers can be quartered.

And in Microbalrog's America, police could never enter your property, unless we are at war.
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Firethorn

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Re: Is this a novel approach to the 3rd Amendment?
« Reply #29 on: March 09, 2015, 04:22:55 PM »
Well, if they can do that, I guess it would be meaningless. Let us know when that time comes.

Still, the third amendment prohibits mandatory quartering (being forced to provide lodging), not searching, or even loitering. (Don't we have the 4th Amendment, for such cases? Don't we have standard common law for such cases?) From what I've read about the Henderson, NV case, the cops wanted to use the homes as some sort of observation post, or command center. If they were staying there overnight, or something, I could see how the third amendment might apply.

I have to agree.  At the very least, they should be forced to pay rent for the facility, a sort of limited eminent domain.  If there's going to be virtually continuous police presence there, and not in the direct performance of their duties at that location(IE crime scene investigation), at some point they're 'quartering' there even if they're not sleeping.  Eating alone could trigger it. 

I agree on the renaming thing, they're armed government agents, which there wasn't much besides the army back then.

I don't want to set any 'hard' rules, but if they're at the location to do their duty because that's the only place to do the duty - IE they're executing a search warrant, dusting for prints, tracking down all the bullet holes, casings, testing blood spills, etc...  That's not being quartered there.  They go back to the motel to sleep.

If they're evicting a family for their safety and placing a sniper in the home because their neighbor across the street has started a hostage situation, again, that's a combat situation, not a quartering.

It gets shady when they're forcing the family to host a listening post or 'command center' when they're not considering an imminent active breach, but conducting an investigation 'under cover'.

zxcvbob

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Re: Is this a novel approach to the 3rd Amendment?
« Reply #30 on: March 09, 2015, 04:46:24 PM »
There's also a 5th Amendment argument -- a violation of the Takings Clause.

All of this should be moot; it should be handled like a home invasion robbery and/or a kidnapping.
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vaskidmark

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Re: Is this a novel approach to the 3rd Amendment?
« Reply #31 on: March 09, 2015, 05:03:56 PM »
There's also a 5th Amendment argument -- a violation of the Takings Clause.

All of this should be moot; it should be handled like a home invasion robbery and/or a kidnapping.

30 responses and we are back to the comments made by the OP.

I do not think home invasion robbery/kidnapping would stand up merely by looking at the elements of either of those crimes.  Nor do I believe a prosecutor would even consider bringing forth an indictment based on those crimes.  It's all well and good to discuss them on a theoretical basis but it's not going to go anywher except showing off your skills in building a hypothetical case.

stay safe.
If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege.

Hey you kids!! Get off my lawn!!!

They keep making this eternal vigilance thing harder and harder.  Protecting the 2nd amendment is like playing PACMAN - there's no pause button so you can go to the bathroom.

zxcvbob

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Re: Is this a novel approach to the 3rd Amendment?
« Reply #32 on: March 09, 2015, 05:17:30 PM »
"Hypothetical case" is about all you have when you're suing the king in the king's court.
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