Is this a novel approach to the 3rd Amendment?

[vaskidmark]

http://www.usatoday.com/story/opinion/2015/03/01/constitutional-law-third-amendment-quartering-column/24220593/

I saw the announcements for the event and admit I was puzzled about what they might have to discuss.

So now I'm beginning to see:

The only Supreme Court case in which the Third Amendment did any heavy lifting is Griswold v. Connecticut, a case that's not about troop-quartering, but about birth control. The Supreme Court held that the Third Amendment's "penumbra" (a legal term that predates the Griswold case) extended to protecting the privacy of the home from government intrusions. "Would we," asked the court, "allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" The very idea, said the court, was "repulsive."

Likewise, the U.S. Court of Appeals for the Second Circuit held in Engblom v. Carey that the Third Amendment protects a "fundamental right to privacy" in the home. Since then, courts haven't done much to flesh these holdings out, but I wonder if they should. In the 18th century, when the Third Amendment was drafted, "troop quartering" meant literally having troops move into your house to live at your expense and sleep in your beds. It destroyed any semblance of domestic privacy, opening up conversations, affection, even spats to the observation and participation of outsiders. It converted a home into an arena.

Today we don't have that, but we have numerous intrusions that didn't exist in James Madison's day: Government spying on phones, computers, and video — is spyware on your computer like having a tiny soldier quartered on your hard drive? — intrusive regulations on child-rearing and education, the threat of dangerous "no-knock" raids by soldierly SWAT teams that break down doors first and ask questions later.

The Third Amendment hasn't been invoked in these cases — well, actually, it has, in the case of a SWAT team in Henderson, Nev., that took over a family home so that it could position itself against a neighbor's house — but maybe it should be. At least, maybe we should go farther in recognizing a fundamental right of privacy in people's homes.

  (emphasis added)

I'm still confused - is that really a 3A issue as opposed to a 4A or even 5A (self incrimination and takings) issue?

Thoughts?  Ideas?  Notions?

stay safe.

[Perd Hapley]

I'm still confused - is that really a 3A issue as opposed to a 4A or even 5A (self incrimination and takings) issue?

No.

[vaskidmark]

No.

D-

Please complete the assignment and resubmit.

Thoughts?  Ideas?  Notions?

stay safe.

[Hawkmoon]

In this post-drug war era of no-knock raids, SWAT teams, and governmental spying, it's sad to think that we are, in fact, less secure in our homes than "the poorest man" in his own cottage was under the English kings we once revolted against. And if that's the case, maybe the Third Amendment isn't working as well as we think.

IMHO, Fourth Amendment for the win.

Amendment 4 - Search and Seizure

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What's "reasonable" about a SWAT team breaking down a 90-year old woman's front door at o-dark-thirty because they think someone might have sold some marijuana from (or near) that address?

What's reasonable about "asset forfeiture," without any due process?

[Perd Hapley]

D-

Please complete the assignment and resubmit.
stay safe.

You want me to explain why the 3rd Amendment doesn't apply to cases other than soldiers being quartered in houses? 

[zxcvbob]

Has that Mitchell v. City of Henderson case gone anywhere?  It's been a couple of years since it was filed.  (seems like kidnapping would be an easier claim to make)

[vaskidmark]

You want me to explain why the 3rd Amendment doesn't apply to cases other than soldiers being quartered in houses? 

No, but I'd appreciate reading your opinions (other than "It should have been the 4th Amendment") on the application of the 3rd Amendment to the cases cited.  Or perhaps opining about how appealants are missing out on the chance to seek stare decisis support Under the 3rd Amendment for a case that probably would be pretty much DOA if appealed under the 4th Amendment.

stay safe.

[Regolith]

Has that Mitchell v. City of Henderson case gone anywhere?  It's been a couple of years since it was filed.  (seems like kidnapping would be an easier claim to make)

The Judge tossed out the 3A claim, and suggested to the plaintiffs that a 4A claim would be more likely to succeed, so they're proceeding on 4A grounds.

http://www.reviewjournal.com/news/las-vegas/judge-police-takeover-henderson-homes-not-covered-third-amendment

[MechAg94]

In that case, I am not sure if police don't equal soldier.  However, I think it might fall under illegally seizing their home.  The cops might have had a better case if they just decided to seize the house on very flimsy evidence.  It would take months for them to get their house back.

[zxcvbob]

In that case, I am not sure if police don't equal soldier.  However, I think it might fall under illegally seizing their home.  The cops might have had a better case if they just decided to seize the house on very flimsy evidence.  It would take months for them to get their house back.

Why could a citizen not make a citizen's arrest (can't you just hear Gomer Pyle saying that) of the police chief's house on equally dubious evidence?  Goose, gander, etc.

[Perd Hapley]

In that case, I am not sure if police don't equal soldier.  However, I think it might fall under illegally seizing their home.  The cops might have had a better case if they just decided to seize the house on very flimsy evidence.  It would take months for them to get their house back.

So they were forced to "quarter" the police? I'm starting to wonder what folk think "quarter" entails.

[MechAg94]

So they were forced to "quarter" the police? I'm starting to wonder what folk think "quarter" entails.

When was the last time anyone in this country had to house and feed one or more soldiers?  Is it really done anywhere these days? 

[zxcvbob]

When was the last time anyone in this country had to house and feed one or more soldiers?  Is it really done anywhere these days? 

The 3rd Amendment actually works!  (too bad about the others)

[DustinD]

After some natural disasters such as Katrina the police made themselves at home in many commercial spaces without permission.

[KD5NRH]

Why could a citizen not make a citizen's arrest (can't you just hear Gomer Pyle saying that) of the police chief's house on equally dubious evidence?

Hey, that's it; we can just redefine burglary as a "citizen's asset forfeiture."

The guy down the street has way too nice of a car.  He must be doing something illegal to make the payments.

[MicroBalrog]

You want me to explain why the 3rd Amendment doesn't apply to cases other than soldiers being quartered in houses? 

So you're suggesting that as long as we're quartering someone other than soldiers, it's okay?

[Perd Hapley]

So you're suggesting that as long as we're quartering someone other than soldiers, it's okay?

So you're suggesting that as long as something is not specifically proscribed by the Constitution, it's okay?

The 3rd Amendment means what it means. It forbids a specific thing. It does not forbid those things it does not forbid.

[MicroBalrog]

So you're suggesting that as long as something is not specifically proscribed by the Constitution, it's okay?

The 3rd Amendment means what it means. It forbids a specific thing. It does not forbid those things it does not forbid.

The idea that the state can avoid the constitutional restriction by renaming its soldiers "SWAT teams" or "postal workers" would mean that the document is meaningless.

[Perd Hapley]

The idea that the state can avoid the constitutional restriction by renaming its soldiers "SWAT teams" or "postal workers" would mean that the document is meaningless.

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.

[MicroBalrog]

So you're suggesting now that, under the third amendment, quartering troops in your house is okay, as long as it is not overnight

[Perd Hapley]

So you're suggesting now that, under the third amendment, quartering troops in your house is okay, as long as it is not overnight

"Quartering" means that you're providing a place to stay, a place to sleep, etc. If someone's in your house/barn/whatever, for just a few hours, then it's not quartering, so the third amendment obviously does not apply. A number of other laws may apply, but not the third. Again, why would anybody want to trot out amendment 3, when other laws are more readily applicable? And remember, you must still show that the police could be considered soldiers. That entails more than just saying, "well, they were very mean."

[MicroBalrog]

Are you suggesting, then, that the third amendment allows for quartering anyone who isn't a member of the military, and for soldiers to stay in people's homes as long as they're not sleeping there?

I think this is a reading so narrow as to render the amendment virtually meaningless.

[Perd Hapley]

Are you suggesting, then, that the third amendment allows for quartering anyone who isn't a member of the military, and for soldiers to stay in people's homes as long as they're not sleeping there?

I think this is a reading so narrow as to render the amendment virtually meaningless.

You're more intelligent than this. If the amendment is narrow, that's because it referred to something rather specific. When the British occupied Boston, they expected the citizens thereof to provide a place for the soldiers to live. From what I've read, this was usually a large building, such as a warehouse, or meeting hall (I don't recall whether they had to provide food). The point, as far as the Patriots were concerned, was being forced to provide for an army sent to oppress them. The amendment was written when the memories of the British occupation were about as fresh as our memories of the Sept. 11th attacks, so I guess it didn't seem meaningless to them.

But if amendment 3 is meaningless, that would explain the articles linked in the OP, citing a lack of case law; or why the notion of a 3rd Amendment watchdog group is treated as a joke. So if I'm saying that the 3rd Amendment is meaningless, I'm certainly not the only one.

I'm hoping you never make it to the U.S. Supreme Court. You seem to want to interpret laws to make them be all they can be, rather than accepting that they mean what they say - and no more. If those who wrote the BOR, and ratified it, had meant to keep all government employees from hanging out on private property, they could have just said so. Instead, they wrote a rather narrowly-tailored amendment. Whether we like it or not.

[MicroBalrog]

From what I've read, this was usually a large building, such as a warehouse, or meeting hall (I don't recall whether they had to provide food).

I have read in several sources that quartering soldiers in the homes of prominent citizens in the community was also done, partly because those homes were often used by officers, and partly because it was a neat way to harass and intimidate people.

If those who wrote the BOR, and ratified it, had meant to keep all government employees from hanging out on private property, they could have just said so. Instead, they wrote a rather narrowly-tailored amendment. Whether we like it or not.

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.

[RoadKingLarry]

The idea that the state can avoid the constitutional restriction by renaming its soldiers "SWAT teams" or "postal workers" would mean that the document is meaningless.

Ladies and gentlemen, we have an epiphany!