Typically when we think of CONLAW (Constitutional Law) affecting law enforcement, the average cop can rattle off a thorough understanding of restrictions of the First, Second, Fourth, Fifth, Sixth and Seventh Amendment to a lesser extent. Missing in that sequence is the Third Amendment, passed in 1791, that played a huge part with the concerns of our Founding Fathers during their time period, seemingly disappeared from our social thought for nearly two hundred years, but is once again appearing.
First, the Third Amendment is short and sweet: “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.”
Looking through our eyeglass of American History, we note that The U.S. Supreme Court (SCOTUS) has barely addressed this portion of our Bill of Rights, because the problem of troops forcing themselves into our homes for refuge hasn’t happened. It was a big issue then, but over the last 221 years not so. The only case with real significance was Engblom v. Carey, 677 F2d. 957 (2nd Circuit 1982) heard by the U.S. Court of Appeals for the Second District. In short, New York State prison employees, in 1979, were on strike and were replaced by members of the National Guard. The federal appellate court sided with the prison employees. Military troops were quartered violating the Third Amendment. It’s interesting to note the court found that the prison officials were “tenants” in this situation and used Fourth Amendment case law to establish that fact.
Second, I would argue that our national founders probably couldn’t conceive that the threats facing us now could thrust the seemingly dormant Third Amendment issue back to the forefront of national policy, debate and court battles over two centuries later. Remember, the primary thought of the Founders, according to their memoires, were “Redcoats” kicking in the doors to their homes to set up headquarters and tossing their family out in the cold. Today, the threats are far worse than bayonets. The Arab Spring of 2011 (and the civil war continuing in Syria right now) has released Weapons of Mass Destruction stocks of Egypt, Libya, and others. It’s not too far fetched to apply the theme of a horrific Hollywood movie and turn it into reality, which would require deployment of troops in order to provide humanitarian assistance, security, healthcare and law and order within our borders. I’m reminded of a statement I once heard, I believe by former Department of Homeland Security Director Tom Ridge, circa 2002, when testifying in front of Congress. He said, as I recall, “Everyday, somewhere around the world, someone wakes up with the sole purpose of coming to our country to destroy it….” by the most effective means possible. Fortunately, achieving that dream by WMD prospects is proving harder to do than first thought but unfortunately, the odds are not on our side.
Third, the Federal Bureau of Investigation has notified us nationally that militant rise of “militia groups,” “hate groups,” and others are on the upward spiral again. I can recall the first time in the early-90’s when it was deemed an LEO serious problem. If the cops are unaware of the Third Amendment, militia members sure aren’t. They know it letter by letter, and most have read the U.S. Constitution at least once, if not have actually studied the document thoroughly, to include their own state constitution, which is something that I have found most police officers have not done. While militia groups train for woodland and urban combat in preparation for what they believe are going to be constitutional violations on a mass scale, President Bush (43) actually created via Executive Order in 2002 the U.S. Northern Command, USNORTHCOM, which is led by a Four Star Army General. The mission of the command is to “…deter, defend and defeat threats and aggression aimed at the United States…(and)..As directed by the President or Secretary of Defense provides military assistance to civilian authorities to including consequence management operations.” As you can see by the ambiguous statement above, it would cause concern for some because of the words used.