Case Western Reserve Law Review Volume 67 Issue 2 Article 7 2016 The Third Amendment Incorporated: “Soldiers” and Domestic Law Enforcement Chad Aronson Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Chad Aronson, The Third Amendment Incorporated: “Soldiers” and Domestic Law Enforcement, 67 Case W. Rsrv. L. Rev. 537 (2016) Available at: https://scholarlycommons.law.case.edu/caselrev/vol67/iss2/7 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Case Western Reserve Law Review·Volume 67·Issue 2·2016 — Note — The Third Amendment Incorporated: “Soldiers” and Domestic Law Enforcement “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.” 1 Contents Introduction ................................................................................... 538 I. What We Know About the Third Amendment ............................ 541 A. The Courts ................................................................................. 541 1. Engblom v. Carey .............................................................................. 543 2. Estate of Bennett and Mitchell ......................................................... 544 B. The Gap in Scholarly Commentary ................................................ 546 II. The Significance of the Incorporation Question ...................... 547 A. Incorporation and the Bill of Rights ............................................... 548 B. Incorporation and the Second Amendment ...................................... 549 1. Heller and Step One .......................................................................... 549 2. McDonald and Step Two .................................................................. 551 III. The Third Amendment in 1789: Step One .................................. 553 A. Original Intent ............................................................................ 553 B. Reasons Behind the Right Itself ..................................................... 556 C. “Soldiers” and Law Enforcement ................................................... 558 D. The New Domestic Soldiery .......................................................... 559 E. The Limited Reach of Soldiers ....................................................... 560 IV. The Third Amendment Incorporated ........................................ 561 A. Framing the Right at Issue............................................................ 562 B. The Third Amendment and Step Two ............................................. 564 1. Soldiers and Domestic Law Enforcement ......................................... 567 2. The Police of the Nineteenth Century vs. Police of Today ............. 570 3. Soldiers, State Actors, and Quartering ............................................. 573 Conclusion ....................................................................................... 576 1. U.S. Const. amend. III. 537 Case Western Reserve Law Review·Volume 67·Issue 2·2016 The Third Amendment Incorporated Introduction In 2013, the Mitchell family sued the City of Henderson for viola- ting their Third Amendment rights.2 According to the complaint, se- veral police officers forcibly removed Anthony Mitchell and his parents, Linda and Michael, from their respective homes3 and remained in them for several hours.4 The police initially asked for the family’s cooperation in investigating a domestic violence dispute involving one of their next- door neighbors.5 Evidently, the nature of the dispute required SWAT team assistance.6 When Anthony declined to assist the police, he was forcibly re- moved from his home and arrested.7 The officers remained in his home to carry out their surveillance on Anthony’s neighbor as planned.8 After a bizarre turn of events, the officers subsequently arrested Michael and forcibly removed Linda from their home, presumably also for surveillance.9 The officers searched the family house and the cars, spilled condiments from the refrigerator onto the floor, and drank from the Mitchells’ cooler, evidenced by fifteen empty plastic cups found in the trashcan.10 The Mitchell family sued, claiming the officers “quartered themselves in [their home] without their consent, violating their rights guaranteed by the Third and Fourteenth Amendments of the United States Constitution.”11 While the district court allowed some of the family’s other claims to proceed on the merits, the court dismissed the family’s Third Amendment claim, holding that municipal police officers are not “soldiers” within the meaning of the Third Amendment.12 2. First Amended Complaint at 29, Mitchell v. City of Henderson, No. 2:13- cv-01154, (D. Nev. Feb. 2, 2015). 3. Anthony Mitchell and his parents own separate homes on the same street. Id. at 6. 4. Id. at 36. 5. Mitchell v. City of Henderson, No. 2:13-cv-01154, 2015 WL 427835, at *1 (D. Nev. Feb. 2, 2015). 6. Id. 7. Id. at *2–4. 8. Id. at *3. 9. Id. 10. Id. 11. First Amended Complaint, supra note 2, at 29. 12. Mitchell, 2015 WL 427835, at *18. 538 Case Western Reserve Law Review·Volume 67·Issue 2·2016 The Third Amendment Incorporated Of all the provisions contained in the Bill of Rights, the Third Amendment is the least litigated.13 The contours of Third Amendment’s protections are undefined and untested. The first, and only, Third Amendment case to be tried on the merits was in 1981.14 Since then, only a handful of courts have even considered Third Amendment claims before dismissing the challenges. Significantly, because the Amendment has never been the subject of a U.S. Supreme Court challenge, it has not been incorporated against the states through the Fourteenth Amendment Due Process Clause.15 Unfortunately, the case law, as well as most academic literature on the Third Amendment, is without a comprehensive incorporation analysis. As the recent Second Amendment jurisprudence suggests, this is a missed opportunity. That is, District of Columbia v. Heller16 and McDonald v. City of Chicago17 illustrate how the incorporation question involves an analytical framework quite distinct from the framework required to ascertain original meaning. These cases also show how the Supreme Court reinterpreted the Second Amendment, finding that the Amendment’s original militia-focused purpose was no longer a limitation to the Amendment’s reach. If the Supreme Court ever considers whether the Third Amendment binds state and local law enforcement, the Court would likely model the analysis on Heller and McDonald. For protections yet to be authoritatively interpreted by the Supreme Court, like the Third Amendment, the Court will have to undergo two layers of analysis— one to determine original meaning, the other to determine whether the right applies against state and local governments. First we ask what a constitutional amendment means based on the text, original understanding, and legislative history leading up to ratification in 1789. In this Note, step one will be analyzed through an originalist lens,18 given that method of interpretation’s general accep- tance by today’s Court.19 Thus, we ask how the Framers’ generation 13. Tom W. Bell, Note, The Third Amendment: Forgotten but Not Gone, 2 Wm. & Mary Bill Rts. J. 117, 140 (1993). 14. Engblom v. Carey, 522 F. Supp. 57 (S.D.N.Y. 1981). 15. McDonald v. City of Chicago, 561 U.S. 742, 765 n.13 (2010); but see Engblom v. Carey, 677 F.2d 957, 961 (2d Cir. 1982) (affirming the district court’s holding that the Third Amendment applies against state governments). 16. 554 U.S. 570 (2008). 17. 561 U.S. 742 (2010). 18. In this Note, I do not intend to consider the various strands of originalism. Rather, I analyze the Third Amendment’s meaning, as of 1789, using the originalist model Justice Scalia employed in District of Columbia v. Heller, 554 U.S. 570 (2008). 19. See Jamal Greene, Selling Originalism, 97 Geo. L.J. 657, 659 (2009) (noting that in Heller, “[n]ot only did Justice Scalia secure five votes for 539 Case Western Reserve Law Review·Volume 67·Issue 2·2016 The Third Amendment Incorporated “would have expected the relevant constitutional principles to be ar- ticulated and applied,”20 eschewing any consideration of “current societal values” in favor of an original, “fixed meaning.”21 Given the interpretation in step one, step two determines whether the right applies to state and local governments—that is, whether the right is “fundamental” and thus applies against the states, through the Fourteenth Amendment’s Due Process Clause. Here, the step two analysis is even more malleable than that of step one, and hence, lends itself to alternative interpretations. This is because the analysis calls for two lines of inquiry which can, in theory, lead to different outcomes. On the one hand, we widen the inquiry by asking whether the right is “deeply rooted in this Nation’s history and tradition.”22 Here, the Court looks to the depths of American history, as well of English common-law history, up until 1868, the year the Fourteenth Amendment was ratified. At the same time, we are asking a more specific question— whether the Framers of the Fourteenth Amendment intended for the right in question to be incorporated against the