Forget the Second Amendment: This is the Critical Amendment

Amendment III

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.

Has this ever been a problem? Well, During the War of 1812, Sackett's Harbor, New York was a major military base and the buildup of forces rapidly outstripped the supply of housing. So soldiers were quartered in private homes, presumably by law. Since the town was a likely target of British attack, probably consent wasn't a large problem. There were quite a few instances of private homes being used during the Civil War. Apart from that, about the only court case in U.S. history involving this amendment was a case where prison employees in New York went on strike (Engblom v. Carey). National Guardsmen were called in as temporary prison guards and the striking prison guards were evicted to provide quarters for the Guardsmen. A Federal court agreed that the tenants counted as owners and sent the case back to a lower court, which dismissed the case because the State could not have foreseen the higher court ruling and there were no legal guidelines to use for compensation. So they simultaneously won and lost. No Supreme Court decision has ever directly involved the Third Amendment. At most, the amendment has been cited in passing only to show how deep American concerns about privacy and property run.

Nobody does life support like the U.S. military, and almost any situation requiring temporary quarters for troops will probably make use of public buildings or large private spaces like warehouses or hangars. Note that there's absolutely nothing to prevent troops from being housed with consent, so a family putting up a visiting family member in the military doesn't apply. Nor is there anything to prevent people from voluntarily housing troops from patriotic motives or for compensation.

So what's relevant about perhaps the least-applied Amendment in the Constitution? A few court cases have invoked the Third Amendment, most of which have been described as "far fetched" or "silly." One of the most widely quoted was United States v. Valenzuela (1951). Gus Valenzuela (who was serving in Korea at the time) was sued by the Federal government for violating the 1947 House and Rent Act. He asked a Federal Court to dismiss the case on Third Amendment grounds. The Court ruled:

Reference will be made to only one of defendant's constitutional contentions. In his brief, the defendant states, "The 1947 House and Rent Act as amended and extended is and always 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."

"This challenge" to quote from defendant's brief, "has not been heretofore made or adjudged by any court, insofar as our research discloses."

We accept counsel's statement as to the results of his research but find this challenge without merit.

The motion to dismiss is denied.

So metaphorically equating regulators with occupying troops doesn't cut it in court. The courts in general take a dim view of sweeping curtailment of government authority based on someone's novel reinterpretation of the Constitution. And given the very narrow wording of the Third Amendment, unless someone houses a squad of Marines in your rumpus room, the courts aren't going to take your Third Amendment case seriously. You can argue the EPA are like storm troopers and regulating products you use in your home amounts to being quartered in your house. Just don't expect a court to take you seriously.

What's the Real Issue?

Before the American Revolution, Britain had a problem. The Colonies demanded protection from Indian attacks, but refused to put up the money for barracks and rations. Staying in private homes, of course, wouldn't be an issue in the field because there weren't enough settlers to make it practical, and soldiers permanently stationed on the frontier would stay in forts. So quartering troops in private homes only became an issue in garrison. It's important to note three things in defense of the British:

• The need for military protection wouldn't have been so acute if settlers had respected Indian lands and restrictions on settlement.
• The colonists wanted military protection, but didn't want to pay for it. Sound familiar?
• The regulations on requisitioning quarters called for occupying public and unoccupied buildings first and private homes last.

Simply refusing to send troops until the Colonies ponied up wasn't an option. It would effectively abandon the Colonies and make resistance to calls for independence a lot less defensible. Allowing voting representation in Parliament would have created a plethora of problems because the Colonies had a population roughly half that of Britain. The Colonies couldn't out-vote the home country, but they could certainly ally with sympathetic members of Parliament and seriously upset the political balance of power. And as tensions rose in the Colonies, British troops assumed more the role of an occupying force, costs rose, more taxes were imposed, tensions rose still further and the rest, as they say, is history.

We can see tons of counterfactual ways Britain could have defused the situation. Giving each colony (plus those in Canada and maybe Jamaica) a voting member would have kept control firmly in British hands but allowed a much freer exchange of information. Parliament could have gotten much more accurate understanding of colonial grievances, and the colonists might have gotten a clearer picture of how much their defense was costing. As fun as it can be to write counterfactual history, that's not the point here.

So the real issue is, the government (in this case Britain) didn't have the money to solve a problem, and solved the problem by dumping it in the laps (or living rooms) of citizens. And that is a contemporary issue. No, it's not soldiers. But government at all levels dumps the costs of programs on everyone else. The Federal government wants secure identification. So it dumps the costs of creating secure ID on the States, who in turn dump the costs of gathering the necessary documents onto private citizens. We solve the need for equal opportunity by restricting the rights of employers and landlords. We provide access to the handicapped by requiring business owners to pay for ramps, elevators, rest room stalls and so on. States decide the schools must provide services to students and passes the costs on to school districts, who, in turn, pass on the costs to taxpayers.

If we were drafting the Constitution today, we might see the Third Amendment expressed in these terms:

No unit of government shall impose any unfunded mandate on any lower level of government or private person.