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Lifelong Legal Learning

Is the Third Amendment to the U.S. Constitution Relevant Today 


The Third Amendment proposed in 1789, reads as follows: “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.”  While part of the Bill of Rights, it is among the least cited by courts of law, and it has never been the basis of a Supreme Court decision.  People today read the Third Amendment and wonder why soldiers would ever be quartered in their homes when we have plenty of military bases with base housing and barracks.  However, back in the 18th Century, the quartering of troops in private homes was a serious issue.  It was one of the sparks that ignited the American Revolution.

Background and History

Historically, the British people had a deep-rooted fear of standing armies.  They feared having soldiers quartered together in barracks away from the general public, and they thought a standing army would lead to a military take-over of the government.  The British believed it was safer to quarter troops in inns, ale houses, and in private homes, keeping them among the civilian population. Yet, at the same time, they resented having soldiers living with their families, in their private homes.  The issue came to a head during the Glorious Revolution of 1688-89, and Parliament passed a law that soldiers could not be quartered in the homes of British citizens without their consent.  However, the law did not apply to British colonies.

The first American protests over billeting of troops came during the French and Indian War.  The British housed thousands of soldiers in American homes.  When the war ended in 1763, the British deemed it prudent to keep a significant military presence in the colonies.  In 1765, Parliament passed a Quartering Act that set out its plan for housing soldiers in the Americas.  It was up to the colonists to provide barracks or other suitable housing for the troops.  They were also responsible for feeding the soldiers, providing bedding, firewood, beer and other necessities. 

The law was not popular in the colonies.  Americans were accustomed to using trained militia to defend themselves.  The militia was comprised of local men who went home at the end of the fight and provided for their own necessities.  The colonists were extremely distrustful of a standing British army in their midst.  Weren’t they British subjects, entitled to the same protections as British subjects in the mother country?  In 1768, royal troops were dispatched to Boston.  Their mission was to enforce British law and suppress growing resentment among the people.  As everyone knows from high school American history, Boston, Massachusetts was the birthplace of the Revolution.  Events spun out of control on March 5, 1770, when a hostile crowd confronted a group of British soldiers.  Unnerved, the troops opened fire and five civilians died.  News of the “Boston Massacre” spread throughout the colonies, and political unrest intensified.

The British government passed the “Coercive Acts” in 1774, partly in response to the Boston Tea Party.  One of these new laws was a more onerous quartering act which allowed royal governors to quarter troops in private homes.   Then, in 1776, came the Declaration of Independence.  One of the grievances against the king listed in the Declaration is the quartering of troops: “He has kept among us, in times of peace, Standing Armies without the consent of our legislatures.”   Later, it says: “For Quartering large bodies of armed troops among us.”

The Declaration of Independence shows us that our founding fathers saw this as an important issue. Many of the state constitutions drafted after the Revolution contained provisions prohibiting the quartering of troops in homes.  The experience and thinking of the times made it quite natural to include such a provision in the Bill of Rights.  The Third Amendment was nothing new.  It simply articulated and codified a major concern of 18th Century Americans.

The Third Amendment Has Seldom been Litigated.

There are not many legal cases involving the Third Amendment, but there are a few notable for how the amendment was used.  In Engblom v. Carey, 677 F.2d 957 (2nd Cir. 1982) the Second Circuit Court of Appeals was asked to rule that the Third Amendment prohibited the National Guard from evicting prison guards from their on-site residences.  In 1979, prison officials in New York went on strike.  The National Guard deployed to act as prison guards during the strike.  When the National Guard came in, they took over the state-owned living facilities at the prison where the striking guards lived.  National Guard troops moved into the living facilities.  The prison guards sued.  The U.S. 2nd Circuit ruled (1) that the term “owner” in the Third Amendment includes tenants; (2) that the National Guard troops qualified as soldiers; and (3) the Third Amendment applies to actions of the states via the Fourteenth Amendment.

While Engblom is a close fit to the purpose of the amendment, other applications are less clear.  United States v. Valenzuela, 95 F. Supp. 363 (S.D. Calif 1951), is a case where a soldier tried to use the Third Amendment to protest the end of rent control in Los Angeles.  He stated the new rent control law should be struck down because it was “the incubator and hatchery of swarms of bureaucrats to be quartered as storm troopers upon the people in violation of Amendment III of the United States Constitution.”  The court rejected his constitutional argument. 

Another stretched use of the Amendment occurred in Jones v. United States Secretary of Defense, 346 F. Supp. 97 (D. Minn. 1972).  In this case, army reservists tried to use the Third Amendment as justification for refusing to march in a parade.  They lost their argument. No case has ever been accepted to the U.S. Supreme Court on a Third Amendment issue.


The question remains.  Do we really need the Third Amendment in our modern age?  We have a standing Army, Navy and Air Force.  All have healthy budgets for housing troops.  Yet, legal scholars contend the Third Amendment does have relevance in the present.  It exemplifies the right to personal privacy, to the sanctity of the American home.  It is the only place in the Constitution discussing the relationship between civilians and the military.  It stands for the idea that in this country people are protected from the government intruding into our homes and our private spaces.



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