Third Amendment

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 prescribed by law.

It serves to prevent the unauthorized “quartering” (i.e., lodging or dwelling) of soldiers in private homes. See James P. Rogers, Third Amendment Protections in Domestic Disasters, 17 Cornell J.L. & Pub. Pol’y 747, 767 (2008); see also Ravin v. State, 537 P.2d 494, 503 (Alaska 1975) (“Among the enumerated rights in the federal Bill of Rights are the guarantee against quartering of troops in a private house in peacetime (Third Amendment)”). The Founding Fathers established this protection in response to the British government’s Quartering Act of 1774, which authorized British commanders to quarter, or house, their troops wherever necessary, including within the homes of American colonists.

The question of whether police officers can be considered “soldiers” and whether the use of a house for less than twenty-four hours could be construed as “quartering” within the scope of the Third Amendment was addressed by the U. S. District Court for the District of Maine, which was affirmed by the First Circuit. See Estate of Bennett v. Wainwright, No. 06-28-P-S, 2007 WL 1576744 (D. Me. May 30, 2007), aff’g magistrate judge, 2007 WL 2028961 (D. Me. July 7, 2009), aff’d, 548 F.3d 155 (1st Cir. 2008). The plaintiffs in Estate of Bennett alleged that a Maine state trooper forced them from their home without authority, constituting “illegal quartering” in violation of the Third Amendment. See Estate of Bennett, 2007 WL 1576744, at *3.

The trial court rejected the plaintiffs’ position that a municipal officer can, and should be, considered a soldier under the Third Amendment:

The plaintiffs’ position appears to be another of the “far-fetched, metaphorical applications” of this amendment that have been “summarily rejected” as noted by the Second Circuit. There is no sense in which a single state trooper and several deputy sheriffs can be considered “soldiers” within the meaning of that word as it is used in the amendment nor in which the use of a house presumably owned by one of the plaintiffs for a period of fewer than 24 hours could be construed as “quartering” within the scope of the amendment. The county defendants are entitled to judgment on the pleadings as to any claim asserted under the Third Amendment.

Id. at *6.

Consistent with this holding, several other courts have likewise summarily dismissed claims of Third Amendment violations. See Sec. Investor Prot. Corp. v. Exec. Sec. Corp., 433 F. Supp. 470, 473 n.2 (S.D.N.Y. 1977) (dismissing a claim that a subpoena violated the claimant’s Third Amendment right); United States v. Valenzuela, 95 F. Supp. 363, 366 (S.D. Cal. 1951) (rejecting a claim that the 1947 House and Rent Act is “the incubator and hatchery of swarms of bureaucrats to be quartered as storm troopers upon the people”); Custer Cnty. Action Ass’n v. Garvey, 256 F.3d 1024, 1043 (10th Cir. 2001) (rejecting a claim that the operation of military aircraft over private property without the owner’s permission constitutes “quartering” and violation of the Third Amendment).

Reference Desk

Engblom v. Carey, 677 F.2d 957, 966-967 (2d Cir. 1982):

With its historical origins rooted in the English Bill of Rights of 1689, the Third Amendment of the United States Constitution embodies a fundamental value the Founders of our Republic sought to insure after casting off the yoke of colonial rule: the sanctity of the home from oppressive governmental intrusion. In passing the Quartering Act of 1765, the British Parliament required the American colonists to bear the cost of feeding and sheltering British troops stationed in this country. The Act provided that if there was insufficient room for the soldiers in the barracks, they could be quartered in inns, livery stables and ale houses. 5 Geo. 3, c. 33 (1765). The Quartering Act of 1774, one of the “Intolerable Acts” the British Parliament enacted as tensions heightened following the Boston Tea Party, authorized much more intrusive intervention. Apparently, before the Revolution, the City of Boston provided barracks for British troops only on an island in Boston Harbor from which the soldiers could not move quickly to the City in the event of an uprising or disturbance by the colonists. To remedy this strategic disadvantage, the Quartering Act of 1774 authorized the British commanders to quarter their troops wherever necessary, including the homes of the colonists. 14 Geo. 3, c. 54 (1774).

The aversion of the populace to the military presence of the British found eloquent expression in the Declaration of Independence, which registered the complaint that the King “has kept among us, in times of peace, Standing Armies without the consent of our legislatures.” When the colonies began drafting constitutions and declarations of rights during the Revolution, a prohibition against the quartering of troops in private homes was frequently articulated. For instance, section 21 of the Delaware Declaration of Rights, drafted in 1776, provided “that no soldier ought to be quartered in any house in time of peace without the consent of the owner, and in time of war in such a manner only as the Legislature shall direct.”  Two months later, Maryland proclaimed its own Declaration of Rights, which contained an analogous clause.  Similar provisions appear in the Massachusetts Declaration of Rights in 1780 and the New Hampshire Bill of Rights in 1783.  After the Framers forged the Constitution, the memory of an oppressive military presence lingered among the people. Emanating from the first Congress in 1789 as part of the proposed Bill of Rights to meet the widespread popular demand for safeguards for individual rights and subsequently ratified by the States, the Third Amendment to the United States Constitution prohibited the often distrusted Federal Government from the peacetime quartering of soldiers in any house without the consent of the owner. With the help of the Fourth Amendment, the Third Amendment thus constitutionalized the maxim, “every man’s home is his castle.” The Founding Fathers, I am certain, could not have imagined with this history that the Third Amendment could be used to prevent prison officials from affording necessary housing on their own property to those who were taking the place of striking guards.