Uphold the Third Amendment: Column

Glenn Harlan Reynolds | USATODAY

Everyone has heard of the Bill of Rights. The First Amendment gets a lot of discussion, and so does the Second. On Independence Day this year, many people rallied in support of the Fourth Amendment in response to the National Security Agency spying scandal.

Several government officials -- like embattled IRS official Lois Lerner -- lately seem particularly enamored of the Fifth Amendment's right not to testify. But how many Americans could even tell you what the Third Amendment protects?

Even among those who could, many would consider it a bit of a joke. But they just may be wrong about that. The Third Amendment may be coming into its own. It provides: "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."

I often tell my constitutional law students that the Third Amendment is the only part of the Bill of Rights that really works -- because there are almost no cases of troop-quartering. If only the rest of the Bill of Rights were so effective.

In an article published in the William & Mary Bill of Rights Journal last year, however, Prof. Tom W. Bell points out that such violations, while perhaps rare, are not unknown. In 1942, for example, inhabitants of the Aleutian Islands were forced out of their homes, and in some cases troops were actually quartered there, but it took the federal government decades to admit wrongdoing or pay damages.

Likewise, in a 1982 case in the U.S. Court of Appeals for the Second Circuit, prison guards evicted from their quarters and replaced with National Guard troops during a strike sued, and the Court of Appeals found that this action implicated their rights under the Third Amendment, which it characterized as "designed to assure a fundamental right of privacy."

Now we see another Third Amendment case, from Henderson, Nev., in which the plaintiffs, the Mitchell family, claim that Henderson police seized their home -- battering the door open with a battering ram -- so as to secure an advantageous position in addressing a domestic violence report involving a neighboring house. The police were quite rude -- calling the inhabitants "assholes" and shooting both Anthony Mitchell and his dog with a pepper-ball gun -- before setting up a lookout post in the house.

Should the Third Amendment have something to say about this? Well, it speaks only to "troops," not police -- but then, professional police in the modern sense hadn't been invented at the time of the framing. And given the extreme militarization of police nowadays -- with Nomex coveralls, body armor, AR-15 rifles, grenades, armored vehicles, etc., all documented in Radley Balko's new book, The Rise of the Warrior Cop, -- maybe that's a distinction without a difference anyway. Armed minions of the state seizing your home by force seem close enough to "troops" for me.

Personally, I think we need to return to the sense of one's home as a castle, a "fundamental right of privacy" that the Third Amendment was intended to protect. Police, except in those rather rare cases where they reasonably think someone inside is being held hostage or the like, should have to knock politely at the door and -- unless they have a warrant -- should have to depart if the homeowner doesn't want them to come in. Those who violate this rule should be prosecuted as criminals, and opened up to lawsuits without benefit of official immunity.

Some may protest that this rule will make it harder to go after drug dealers and such, who may flush their drugs away before police can get in. To which I respond, tough. Protecting Americans' homes from invasions by armed hooligans is more important than protecting prosecutions under the drug war. One would think, in fact, that preventing such invasions is the first duty of police. It's unfortunate that so many in law enforcement seem to have forgotten that.

Glenn Harlan Reynolds is professor of law at the University of Tennessee. He blogs at InstaPundit.com.

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