The Quartering Troops 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 to be prescribed by law.

—Andrew P. Morriss

Introduction

The Third Amendment is often deemed forgotten or languishing in obscurity. Rarely mentioned by the courts, it has enjoyed a renaissance in the academic legal literature, perhaps foreshadowing future relevance under one or more of the theories put forward in scholarly works. After surveying the historical background of the amendment and its adoption, this entry discusses the amendment’s two substantive appearances in judicial opinions and concludes with a summary of the academic speculations about its possible wider future application.

History Before 1787

English grievances over the quartering of troops began with Norman reforms of the English military system after 1066.¹ By 1130, King Henry I’s London Charter contained a prohibition on billeting troops within the walls of the city, and this guarantee was repeated in King Henry II’s London Charter of 1155.² Dissatisfaction with the quartering of troops continued. This practice featured in several foundational laws: the 1628 Petition of Right, the 1679 Anti-Quartering Act, and the 1689 Declaration of Rights and Bill of Rights.³ Sir William Blackstone wrote that “no soldier shall be quartered on the subject without his own consent.”⁴ By the 1760s, the right not to have soldiers involuntarily quartered in one’s home was well established at common law.⁵

However, Britain’s virtually continuous state of war in the eighteenth century led to growing acceptance of a standing army, and the army’s growing size made quartering impracticable in Britain. In the American colonies, reliance on the militia continued for most local defense, but British troops stationed in the colonies were quartered in private homes. The 1765 Quartering Act required the colonists to pay for barracks and provisions for the army and allowed quartering of troops in inns, livery stables, and alehouses when necessary.⁶ The colonists vigorously objected to quartering troops. These conflicts over quartering escalated after the end of the French and Indian War made the presence of the Army even less popular with the colonists.⁷

Britain reacted to colonial unrest with the 1774 Quartering Act that authorized quartering soldiers in private homes. This law became known as one of the “Intolerable Acts.” American objections both to quartering specifically and to the existence of a standing army more generally featured in the First Continental Congress’s Declaration of Resolves in 1774.⁸ Two years later, the Declaration of Independence charged King George III with “quartering large bodies of armed troops among us.”⁹

The Constitutional Convention

During the Constitutional Convention, Charles Pinckney of South Carolina proposed a series of recommendations, one of which dealt with quartering: “No soldier shall be quartered in any House in time of peace without consent of the owner.”¹⁰ This proposal was not adopted by the Convention.

The Ratification Debates

During the ratification debates, the Anti-Federalists used the absence of a ban on quartering as an argument against the Constitution. For example, Federal Farmer stated that there was no “provision in the constitution to prevent the quartering of soldiers on the inhabitants.”¹¹ He argued that the right against quartering was “particularly valuable to individuals, and essential to the permanency and duration of free government.” Similarly, at the Virginia convention, Patrick Henry contended that “one of the principal reasons for dissolving the connection with Great Britain” was the “quartering of troops” but that under the new Constitution, “we may have troops in time of peace” who “may be billeted in any manner—to tyrannize, oppress, and crush us.”¹²

Once agreement on the concept of a Bill of Rights was reached, however, there was little controversy over the inclusion of a ban on quartering. Several states also adopted their own constitutional provisions banning the quartering of soldiers. Maryland, for example, provided “[t]hat 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 manner only, as the Legislature shall direct.”¹³

Early Practice

The First Congress responded to the demands for an explicit ban on quartering. James Madison drafted an early version of the amendment. It provided, “No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.”¹⁴ This text went beyond what any of the states had proposed “by explicitly giving Congress the power to direct quartering whenever the nation was other than at peace.”¹⁵ The select committee to which the amendment was referred replaced this text with what became the 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.” Under this amendment, Congress could authorize quartering only during times of war. Once the text was settled, there appears to have been no controversy over the proposed amendment during ratification.

There was considerable quartering of troops in private homes during both the War of 1812 and the Civil War.¹⁶ Despite the widespread practice of quartering in both conflicts, however, there is no record of any efforts by the property owners to seek relief under the amendment.¹⁷

Judicial Precedent

Justice Joseph Story observed that the Third Amendment “speaks for itself.”¹⁸ Perhaps unsurprisingly, there have been few court opinions discussing the amendment. In the few that have discussed it, a key issue is whether it has been incorporated by the Due Process Clause of the Fourteenth Amendment.

In McDonald v. City of Chicago (2010), the U.S. Supreme Court noted in a footnote that the amendment had not yet been “fully incorporated.”¹⁹ However, the Second Circuit Court of Appeals found that the amendment was incorporated.²⁰ Other courts have not been receptive to Third Amendment claims. The Tenth Circuit Court of Appeals rejected an assertion that federal approval of military flights through the airspace over one’s home violated the amendment as “frivolous.”²¹

Open Questions

• Are houses of worship protected against quartering?²²
• Does the Third Amendment limit the militarization of police and use of excessive force by law enforcement?²³
• Are there any limits to Congress’s power under the Third Amendment to authorize the quartering of troops in wartime?²⁴
• Should the Third Amendment be incorporated?²⁵
• What would be the process for obtaining consent for quartering during peacetime?²⁶

1. William S. Fields & David T. Hardy, The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History, 35 Am. J. Leg. Hist. 393, 395–96 (1991). ↩︎
2. 1 W. & M., ch. 2, sess. 2 (1689) (Eng.); Fields & Hardy, supra at 399. ↩︎
3. Id. at 403–05. ↩︎
4. 1 Blackstone 413. ↩︎
5. Fields & Hardy, supra at 411. ↩︎
6. Id. at 415. ↩︎
7. Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 Wm. & Mary Bill Rts. J. 117, 125–26 (1993). ↩︎
8. IV. The Bill of Rights; a List of Grievances (1774), https://perma.cc/Y4FH-VJEP. ↩︎
9. Declaration of Independence, ¶ 16. ↩︎
10. 2 Farrand’s 341. ↩︎
11. Storing 2.8.202. ↩︎
12. 3 Elliot’s 411. ↩︎
13. Md. Const. of 1776, Decl. of Rts. XXVIII; Del. Decl. of Rts. § 21 (1776); Mass Const. of 1780, art. XXVII; N.H. Const. of 1784, art. I, § XXVII. ↩︎
14. 1 Annals of Cong. 451 (1789). ↩︎
15. Bell, supra at 134–35. ↩︎
16. Id. at 136–40. ↩︎
17. Id. at 136, n.153. ↩︎
18. 3 Story’s Commentaries § 1893. ↩︎
19. 561 U.S. 742, 765 n.13 (2010). ↩︎
20. Engblom v. Carey, 677 F.2d 957, 961–62 (2nd Cir. 1982). ↩︎
21. Custer Cnty. Action Ass’n v. Garvey, 256 F.3d 1024 (10th Cir., 2001). ↩︎
22. Eric Rassbach, Are Houses of Worship “House[s]” Under the Third Amendment?, 82 Tenn. L. Rev. 611, 622–23 (2015). ↩︎
23. Elizabeth Price Foley, The War Against Crime: Ferguson, Police Militarization and the Third Amendment, 82 Tenn. L. Rev. 583, 590–94 (2015). ↩︎
24. William Gill, Wartime Quartering with and Without Legislative Authorization, 82 Tenn. L. Rev. 567, 568–72 (2015). ↩︎
25. Chad Aronson, The Third Amendment Incorporated: “Soldiers” and Domestic Law Enforcement, 67 Case. W. Rsrv. L. Rev. 537, 564–75 (2016). ↩︎
26. Mark A. Fulks & Ronald S. Range II, The Third Amendment’s Consent Clause: A Conceptual Framework for Analysis and Application, 82 Tenn. L. Rev. 647, 657–59 (2015). ↩︎