Quick…what’s the 3rd Amendment?
Or why were the Founding Father’s concerned about this, and so should we.
I am sure if I gave my class a quiz on the Amendments to the Constitution, this is one of those that would fall out. 1st … we all have something to say about that one. 2nd…will we ever agree what it really says? 13th through the 15th. .... the non-Catholic confessional solution of 3 Hail Mary’s and 3 Our Fathers to absolve us of our Nation’s Original Sin – except someone now wants to rethink the 14th. Then the men decided women are now suddenly smart enough — and equal— to vote with the 19th. And so on. The 3rd 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.
First, an anecdote to buttress my view you are about to read. Days after 9/11, on the first day commercial flights resumed, I took a round-trip flight from Jacksonville FL to Norfolk VA to attend a planning meeting about the Navy’s rapidly changing posture in defense of the Eastern Seaboard and future operations. As I walked into the Jax terminal, I was immediately struck and saddened by the overwhelming armed National Guard presence. It was the same in Norfolk. I was deeply saddened because in my world travels, I had seen this military / paramilitary presence in so many global airports reflecting national and international instability and always thanked my birth heritage when returning to a US port of entry and saw civilian control. Seeing this come to our shores, I knew things had changed, and I lost some of my freedom in a massive application of collective security.
As an academic military historian, an analysis of the 3rd Amendment is easy. The British historically didn’t like standing armies, as their only previous standing army (The Parliamentarian New Model Army under Cromwell) was not a pleasant experience for either side. Building structures such as barracks and garrisons – except for the Royal Household Guard—were later prohibited and local infrastructure (churches, town halls, inns, schools, homes) were expected to billet troops as needed whey they deployed.
In the American colonies, British troops – and later Hessian mercenaries -- increased in numbers to deal with the rebellion. They needed provisions and quarters. The English Parliament passed the Quartering Act (1765) that required the colonialists to provide provisions and quarters for His Majesty’s troops, even as they evolved into an occupation army – a traditional fate to the vanquished. The tension of this arrangement helped precipitate the ‘Boston Massacre’ of 1770 when British troops fired into a crowd. The new American Government used the 3rd Amendment as an inhibitor of standing armies and to safeguard personal property and privacy,
Let’s move forward around 250 years. Is this Amendment relevant today? Depends on your view of the current situation. What I am about to argue probably wouldn’t rise to an effective legal position with today’s Supreme Court -- but it might have gotten traction in Chief Justice Warren Burger’s Court of the 60’s and 70’s. The Supreme Court has never heard a case that the 3rd Amendment was direct to the deliberations. But in Griswold v. Connecticut (1962), in a 7-2 decision, Justice William Douglass writing for the majority, used the 3rd, 4th, 5th and 9th Amendments to establish there is a fundamental and legal right to privacy.
History and terminology are not static. What was understood conceptually in 1787 is not parallel to the 21st century and requires interpretation to ‘the present’ realities. I will argue the 3rd Amendment has application today to the interior deployment of military – and non-DoD federal paramilitary forces – without the consent of the local citizens and state government, except in true national emergency or proscribed by federal law. Even the modern version of quartering and provisioning forces, however done, has a deteriorating effect on the local community and costs are still absorbed by a community forced to accept military presence as well as the unplanned federal taxpayer expenditures forced on all of us. This is an unconstitutional presence of the ‘Soldier’ during ‘peacetime’ without ‘consent.’
The National Guard is routinely deployed with home state concurrence in times of natural disasters, extreme civil unrest, or federalization in time of war or in federal military support (training, short activations, etc.), and always with the concurrence of the state. That is why they exist. Other than the Civil Rights era to enforce adherence to federal law and judicial rulings, the Guard has never been federalized against the home state’s consent or authority. The open-ended federalization of the California Guard and deployment of active-duty forces (Marines) in California and now Florida, appear in violation of the 3rd Amendment. They are not defending the nation in their presence and in fact are deployed to support paramilitary operations to quell and support arrests of selected local population – citizens or otherwise.
What about DHS-ICE operations? If any current US law enforcement agencies can qualify as paramilitary it would be some Border Patrol and most of ICE. They -- especially ICE street operations -- act, dress, equip, and are organized in a military fashion. Their over-the-top weapons protocols and desire for anonymity by hiding their personal and official identities cannot be reasonably converted -without incredulous straining of the facts -- to civilian law enforcement protocols. In my global military experience, the DHS-ICE immigration operations currently displayed are textbook paramilitary operations against an internal population, inspired to regulate, cower, or persecute an oppressed and disfavored minority. This is plain and simple a militarized force under DHS control, much like the Coast Guard – who also has specific law enforcement authorities under the law. It is not that unusual historically to see military and paramilitary – or even another parallel military – controlled and organized by separate power bases within the same government, which characteristically leans to the authoritative models.
The stated future of these operations is to inject more federal or federalized troops into population centers (cities) without local permission and to conduct paramilitary operations to arrest specifically targeted individuals with no stated standard of identifying them as a threat to their communities. In other words, this is not law enforcement on behalf of the community. The stated legal premise of the arrest and removal of these individuals to ‘concentrated’ holding facilities (domestic and then offshore) appears to be in the 1798 Alien and Sedition Acts. It is not lost on me that the current logic parallels the premise of the roundup into concentration camps (called relocation camps) of Japanese Americans in World War II. Current Immigration laws, being contradictory, are generally being ignored through Executive Orders (decrees that don’t have the force of law and could be overturned by Congress or judicial oversite).
Not all states are resisting these federal actions. Texas is cooperating and has run a state led border enforcement operation with mobilized Guard units for years, which the previous Administration refused to reimburse due to its questionable constitutionality. This Administration welcomes the effort and is paying for it retroactively. Florida has built the now famous “Alligator Alcatraz” in the Everglades and activated 200 National Guard to secure it with the promise the Feds will reimburse the state from FEMA funds. Florida also plans to open another ‘detainee concentrated’ facility at the Camp Blanding National Guard base south of Jacksonville.
This meme originated from the DHS social media
Here is my take. Paramilitary forces – to describe them otherwise is naïve -- are operating in population centers to arrest residents from a government list that does not bother to differentiate from a threat to the community or just accused illegal residency, a misdemeanor. Some US citizens and legal residents are being swept up in these operations. Local communities are protesting on behalf of their neighbors and are being controlled by the federal military and federalized National Guard to ‘maintain order’. Those rounded up are then deposited in concentrated detention facilities guarded by a mix of contractors, paramilitary and National Guard, all supported by the military. Most detainees are not receiving legal ‘due process’ and are being involuntarily removed under arrest conditions via military or federally funded transport to other countries not always of origin. The detention facilities, quasi permanent in engineering (tents, prefab, fencing) are placed specifically to prevent escape, using contractors, federal paramilitary and National Guard troops as guards, with direct military support. This is textbook to quartering soldiers (and paramilitary) without consent of the ‘Owner’ (local community) to impose military control in peacetime. I believe this is not the acts of democracy or constitutionality, but reflective of how an occupying power or authoritative regime would behave to control a segment of the population not sympathetic to policies. It certainly flies in the face of the intent of the 3rd Amendment if Chief Justice Warren Burger was still around, not to speak of a few other constitutional rights and laws.
What do you think? I welcome feedback on this issue.