There are plenty of opinions on what the Bill of Rights says. But it would take some effort to find many media pundits opining about the neglected Third Amendment. Not these days. With the most technologically sophisticated military in human history, it is hardly likely that U.S. leadership might resort to putting soldiers in American homes anytime soon. The notion seems as antiquated as flintlock muskets.
Yet, the Third Amendment underscores a most important constitutional issue — civilian control of the military. In his debate in 1788 with Patrick Henry over the quartering issue, Bill of Rights author James Madison noted that the argument was not over the actual quartering of troops. The issue was, he said, that quartering was ”done without the consent of the local authority, without the consent of America.”
It details the history of the amendment, but it doesn’t mention Engblom v. Carey an obscure 2nd Circuit Court of Appeals ruling that “incorporated” the 3rd Amendment against state infrigement under the protection of the 14th Amendment.
From the opinion:
We first address the novel claim based on the Third Amendment, a provision rarely invoked in the federal courts. We agree with the district court’s conclusion that the National Guardsmen are “Soldiers” within the meaning of the Third Amendment. Moreover, we agree with the district court that the Third Amendment is incorporated into the Fourteenth Amendment for application to the states.
Even the THIRD Amendment gets an incorporation decision. But not the Second.
Here’s hoping that the Supreme Court will hear Silviera v. Lockyer. Let’s answer this question, finally. Seventy years is far too long a time to have waited.