The Third Amendment incorporated: 'soldiers' and domestic law enforcement.

AuthorAronson, Chad

"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." (1)

Contents Introduction I. What We Know About the Third Amendment A. The Courts 1. Engblom v. Carey 2. Estate of Bennett and Mitchell B. The Gap in Scholarly Commentary II. The Significance of the Incorporation Question A. Incorporation and the Bill of Rights B. Incorporation and the Second Amendment 1. Heller and Step One 2. McDonald and Step Two III. The Third Amendment in 1789: Step One A. Original Intent B. Reasons Behind the Right Itself C. "Soldiers" and Law Enforcement D. The New Domestic Soldiery E. The Limited Reach of Soldiers IV. The Third Amendment Incorporated A. Framing the Right at Issue B. The Third Amendment and Step Two 1. Soldiers and Domestic Law Enforcement 2. The Police of the Nineteenth Century vs. Police of Today 3. Soldiers, State Actors, and Quartering Conclusion INTRODUCTION

In 2013, the Mitchell family sued the City of Henderson for violating their Third Amendment rights. (2) According to the complaint, several police officers forcibly removed Anthony Mitchell and his parents, Linda and Michael, from their respective homes (3) and remained in them for several hours. (4) The police initially asked for the family's cooperation in investigating a domestic violence dispute involving one of their next-door neighbors. (5) Evidently, the nature of the dispute required SWAT team assistance."

When Anthony declined to assist the police, he was forcibly removed from his home and arrested. (7) The officers remained in his home to carry out their surveillance on Anthony's neighbor as planned. (8) After a bizarre turn of events, the officers subsequently arrested Michael and forcibly removed Linda from their home, presumably also for surveillance. (9) The officers searched the family house and the cars, spilled condiments from the refrigerator onto the floor, and drank from the Mitchells' cooler, evidenced by fifteen empty plastic cups found in the trashcan. (10) The Mitchell family sued, claiming the officers "quartered themselves in [their home] without their consent, violating their rights guaranteed by the Third and Fourteenth Amendments of the United States Constitution." (11) While the district court allowed some of the family's other claims to proceed on the merits, the court dismissed the family's Third Amendment claim, holding that municipal police officers are not "soldiers" within the meaning of the Third Amendment. (12)

Of all the provisions contained in the Bill of Rights, the Third Amendment is the least litigated. (13) The contours of Third Amendment's protections are undefined and untested. The first, and only, Third Amendment case to be tried on the merits was in 1981. (14) Since then, only a handful of courts have even considered Third Amendment claims before dismissing the challenges. Significantly, because the Amendment has never been the subject of a U.S. Supreme Court challenge, it has not been incorporated against the states through the Fourteenth Amendment Due Process Clause. (15)

Unfortunately, the case law, as well as most academic literature on the Third Amendment, is without a comprehensive incorporation analysis. As the recent Second Amendment jurisprudence suggests, this is a missed opportunity. That is, District of Columbia v. Heller (16) and McDonald v. City of Chicago (17) illustrate how the incorporation question involves an analytical framework quite distinct from the framework required to ascertain original meaning. These cases also show how the Supreme Court reinterpreted the Second Amendment, finding that the Amendment's original militia-focused purpose was no longer a limitation to the Amendment's reach.

If the Supreme Court ever considers whether the Third Amendment binds state and local law enforcement, the Court would likely model the analysis on Heller and McDonald. For protections yet to be authoritatively interpreted by the Supreme Court, like the Third Amendment, the Court will have to undergo two layers of analysis--one to determine original meaning, the other to determine whether the right applies against state and local governments.

First we ask what a constitutional amendment means based on the text, original understanding, and legislative history leading up to ratification in 1789. In this Note, step one will be analyzed through an originalist lens, (18) given that method of interpretation's general acceptance by today's Court. (19) Thus, we ask how the Framers' generation "would have expected the relevant constitutional principles to be articulated and applied," (20) eschewing any consideration of "current societal values" in favor of an original, "fixed meaning." (21)

Given the interpretation in step one, step two determines whether the right applies to state and local governments--that is, whether the right is "fundamental" and thus applies against the states, through the Fourteenth Amendment's Due Process Clause. Here, the step two analysis is even more malleable than that of step one, and hence, lends itself to alternative interpretations. This is because the analysis calls for two lines of inquiry which can, in theory, lead to different outcomes. On the one hand, we widen the inquiry by asking whether the right is "deeply rooted in this Nation's history and tradition." (22) Here, the Court looks to the depths of American history, as well of English common-law history, up until 1868, the year the Fourteenth Amendment was ratified. At the same time, we are asking a more specific question--whether the Framers of the Fourteenth Amendment intended for the right in question to be incorporated against the states. As will be demonstrated, this inquiry--versus the originalist inquiry tethered to the time of the Bill of Rights's ratification (step one) can alter the application, and even the character, of a Bill of Rights protection.

This observation bodes well for the question of the Third Amendment's present-day reach. As will be discussed in this Note, an originalist analysis of the term "soldier," as used in the Third Amendment, is unlikely to be interpreted by a court as applying, or being intended to apply, to municipal police. That is, "soldier" was most certainly understood by the Framers of the Constitution as applying to a narrow class of federal governmental actors. (23) Incorporation doctrine, however, allows for a second round of analysis in deriving meaning from a Bill of Rights guarantee, which takes into account American attitudes and understandings during the eighteenth century.

In this Note I argue that future Third Amendment litigants should utilize incorporation analysis to tie "soldiers" to municipal police. That is, the Framers of the Fourteenth Amendment, given certain historical developments during the nineteenth century, would have understood "soldier" as encompassing local, modern-day state actors including police officers and certainly police paramilitary units like SWAT. I arrive at this conclusion by considering what governmental actors were considered "soldiers" at the time of the Constitution's ratification, and then considering what functions those "soldiers" served during the course of the nineteenth century until Reconstruction. I then analyze the status of local law enforcement in the mid-nineteenth century and how it compares to local law enforcement today. The answers to these questions suggest that an incorporated Third Amendment ought to bind state and municipal law enforcement.

Part I of this Note will discuss what we know about the Third Amendment today, given the sparse case law and scholarly commentary. Part II will illustrate the mechanics required to interpret a Bill of Rights protection and the differences inherent in incorporation analysis. As a guide, I will look to the recent Supreme Court jurisprudence on the Second Amendment. Part III will analyze what the Third Amendment means based on the Framers' intent. In Part IV, I will consider the Third Amendment through incorporation analysis. I conclude that the Framers of the Fourteenth Amendment would have contemplated today's police to fall within the Third Amendment's grasp. Finally, I end by commenting on implications inherent in applying the Third Amendment to state and local law enforcement.

  1. WHAT WE KNOW ABOUT THE THIRD AMENDMENT

    The Third Amendment is the least litigated of the Bill of Rights Amendments. (24) Most of the Third Amendment's treatment by federal courts has consisted of symbolic interpretations contained in dicta. Similarly, the legal scholarship exploring the Third Amendment is wanting. As I argue in this Note, the dearth of scholarly attention paid to the relationship between incorporation and the Third Amendment represents a significant oversight.

    1. The Courts

      The little attention the Third Amendment has received by the judiciary reveals two distinct treatments of the right. On the one hand, some courts have briefly considered specific Third Amendment claims before promptly dismissing them, with only one notable exception. (25) On the other hand, courts have invoked the Third Amendment as support for the proposition that the concepts of property and privacy interests are embedded in the Constitution.

      The latter approach--the symbolic application--has been invoked sua sponte by the U.S. Supreme Court on a few limited occasions. For example, in the context of a landlord-tenant dispute involving civilian parties, the U.S. Supreme Court invoked the Third Amendment in 1921. (26) The Court noted that the Third Amendment was added to the Constitution "in recognition of the purpose to protect property and the rights of its owner from governmental aggression." (27)

      Forty years later, the U.S. Supreme Court twice invoked the Third Amendment, in the context of contraception, as a symbol of the Founding Fathers' commitment to privacy. In Poe v. Ullman, (28) for...

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