March 6, 2017
Not since the Civil War has the Third Amendment been tested. It's an obscure little section, but a critical one addressing citizen's right to privacy.
The following is a transcription of the Third Amendment to the Constitution in its original form.
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.
On March 24, 1765, the British Parliament passed the Quartering Act, which outlined the requirements on American colonies for housing British soldiers. Essentially, Britain was taxing American colonists to pay for the housing of British soldiers.
Of the original 13 colonies, only Pennsylvania complied with the directive. The act expired March 24, 1767. The creators of the Constitution held resentment against these regulations and their aim was to prevent further disruption of colonists’ lives.
Basically, the Third Amendment sets forth two basic requirements: one, a ban on nonconsensual housing; and two, establishing procedure for housing requests. In times of peace, the military may not house troops in civilian residences without a homeowner’s consent. During wartime, the military must follow legal procedures to house soldiers in private residences.
Essentially, the Third Amendment establishes a citizen’s right to privacy and freedom from intrusion. Because of the clarity of this amendment, and the development of numerous military bases across the country, the amendment has withstood time. It has not been subjected to substantial testing in the judicial system, unlike most other amendments, though it certainly holds potential for evaluating its extent.
One such case, Mitchell vs. City of Henderson pressed the issue of invasion of property by local law enforcement. In legal filings, the plaintiffs allege officers called to request access to their property to respond to a domestic violence call at a neighbor’s residence. When the plaintiff denied access, law enforcement allegedly forced entry into the home.
The plaintiffs allege this violated their Third Amendment rights. The judge, however, disagreed in this ruling. Federal District Court Judge Andrew Gordon issued the following opinion:
"In the present case, various officers of the HPD and NLVPD entered into and occupied Linda’s and Michael’s home for an unspecified amount of time (seemingly nine hours), but certainly for less than 24 hours. The relevant questions are thus whether municipal police should be considered soldiers, and whether the time they spent in the house could be considered quartering. To both questions, the answer must be no. I hold that a municipal police officer is not a soldier for purposes of the Third Amendment. This squares with the purpose of the Third Amendment because this was not a military intrusion into a private home, and thus the intrusion is more effectively protected by the Fourth Amendment. Because I hold that municipal officers are not soldiers for the purposes of this question, I need not reach the question of whether the occupation at issue in this case constitutes quartering, though I suspect it would not."
In today’s social climate, I expect to see additional tests to this amendment regarding law enforcement tactics. However, the intent of the amendment is clear it relates solely to military forces making demands for housing in civilians’ residences.
The one ambiguity lies in length of time required to constitute housing. As housing of military hasn’t been an issue in the states since the Civil War, I would hope we won’t be pressing for answers anytime soon.
Laurie Chapman publishes Political Broad bi-monthly and takes an informative, opinionated peek at the functions of government. If you have a suggestion for the author, email her at firstname.lastname@example.org or call her at 208-983-1200.