My last article in this Celebrating Our Bill of Rights series focused on the Second Amendment, "On July 4th Honor the 6th for Role in 2nd Amendment."
This column addresses a constitutional subject involving our National Guard, which has been in the news.
Our nation's Third Amendment 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."
It's not obvious that the term "Soldier" in the Third Amendment applies to National Guardsmen, but it does.
Fun Facts: Among the "long Train of Abuses . . . of the present King of Great Britain" in 1776, King George III, called out in our Declaration of Independence for "the Establishment of an absolute Tyranny over these States," was the abuse of "quartering large Bodies of Armed Troops among us."
The Third Amendment to the Constitution, which prohibits this abuse, is the only one of the first Ten Amendments that has never been explained by the United States Supreme Court.
In Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982), the United States Court of Appeals for the Second Circuit, in New York, interpreted the Third Amendment for the first time as applying equally to National Guardsmen as to U.S. Army soldiers.
Engblom v. Carey involved a lawsuit filed "by two correction officers at the Mid-Orange Correctional Facility ('Mid-Orange') in Warwick, New York, against the Governor and various officials of the State of New York, plaintiffs-appellants contend that their due process and Third Amendment rights were violated during a statewide strike of correction officers in April and May of 1979 when they were evicted from their facility residences without notice or hearing and their residences were used to house members of the National Guard without their consent.
"For the first time a federal court is asked to invalidate as violative of the Third Amendment the peacetime quartering of troops ‘in any house, without the consent of the Owner'."
The trial court had granted the motion for summary judgment filed by the governor and various officials of the State of New York, dismissing the complaint of the evicted correction officers on the ground that they "did not have a sufficient possessory interest in their facility-residences to entitle them to protection under the Third Amendment and the Due Process clause of the Fourteenth Amendment."
The Court of Appeals reversed "the dismissal of the Third Amendment claim on the ground that issues as to material facts rendered summary judgment inappropriate."
In explaining this reversal, the Court of Appeals began by describing "the novel claim based on the Third Amendment, a provision rarely invoked in the federal courts":
"We agree with the district court's conclusion that the National Guardsmen are 'Soldiers' within the meaning of the Third Amendment . . . . Moreover, we agree with the district court that the Third Amendment is incorporated into the Fourteenth Amendment for application to the states.
"The crux of appellants' Third Amendment claim depends on whether the nature of their property interest in their residences is sufficient to bring it within the ambit of the Third Amendment's proscription against quartering troops 'in any house, without the consent of the Owner.'
"The absence of any case law directly construing this provision presents a serious interpretive problem, and little illumination can be gleaned from the debates of the Constitutional Convention.
"We are thus left with the language of the Third Amendment and analogies to other areas of law. Under a technical and literal reading of the language, the Third Amendment would only protect fee simple owners of houses.
"We reject such a formalistic construction for the same reasons that it has been rejected in analogous contexts."
In the end, the Court of Appeals held that, "property-based privacy interests protected by the Third Amendment are not limited solely to those arising out of fee simple ownership [i.e., home ownership] but extend to those recognized and permitted by society as founded on lawful occupation or possession with a legal right to exclude others," and remanded the case back to the trial court for "for proceedings not inconsistent with this opinion."
On remand, the trial court acknowledged that the plaintiff correction officers had Third Amendment rights, but "conclude[d] that as a matter of law plaintiffs' Third Amendment rights were not 'clearly established' at the time of the events in question and therefore that the defendants are protected by a qualified immunity and entitled to summary judgment."
On appeal, the Court of Appeals agreed.
As National Guardsmen deploy among us across our nation for various purposes, we should be thankful that our Bill of Rights protects us from this tyrannical abuse by King George: "quartering large Bodies of Armed Troops among us."
Joseph E. Schmitz serves as Distinguished Constitutional Fellow for "The Oversight Project: It’s Your Government." During the 2016 presidential campaign, he served as foreign policy and national security adviser to Donald Trump. Mr. Schmitz served as Inspector General of the Department of Defense from 2002-2005, and now serves as Chief Legal Officer of Pacem Solutions International. He graduated with distinction from the U.S. Naval Academy, earned his J.D. degree from Stanford Law School, and is author of, "The Inspector General Handbook: Fraud, Waste, Abuse, and Other Constitutional 'Enemies, Foreign and Domestic'" (2013). Read More of His Reports — Here.
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