Third AmendmentA Nevada man recently filed a federal lawsuit claiming local police violated his rights protected under the Third Amendment of the U.S. Constitution.

If you had to go look up the Third Amendment, don’t feel bad. You certainly weren’t alone. Americans rarely reference this particular Bill of Rights provision in this modern age.

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.

Anthony Mitchell says Henderson, Nev., police broke down the door of his home, held him at gunpoint and placed him under arrest when he refused to voluntarily allow officers to enter his home and use it as a lookout during a domestic violence investigation of his neighbor.

According to the lawsuit, police first contacted him by phone and told him officers needed to enter his home in order to gain a ‘tactical advantage’ over the neighbor. Mitchell refused, saying he didn’t want to involve himself.

Defendant Officer David Cawthorn outlined the defendants’ plan in his official report: “It was determined to move to 367 Evening Side and attempt to contact Mitchell. If Mitchell answered the door he would be asked to leave. If he refused to leave he would be arrested for Obstructing a Police Officer. If Mitchell refused to answer the door, force entry would be made and Mitchell would be arrested.”

The case raises a number of fascinating issues that will likely stir the passion of liberty lovers, particularly the question of whether police officers count as “soldiers.” One can certainly make that case in this day and age of military style SWAT teams.

Reading accounts of events that day, it seems pretty clear the Henderson police violated Mitchell’s rights. Police officers should not have the power to commandeer private property whenever it suits them, and they certainly shouldn’t have the authority to terrorize a man at gunpoint in his own home because he doesn’t want to get involved in their police actions. These goons should face punishment. So, many will track the case with anticipation, holding their breaths while federal employees debate the definition of their rights.

Most won’t even realize the risk they place themselves in.

This case represents yet another attempt to “incorporate” a provision of the Bill of Rights and enforce it on the states. The law blog Volokh Conspiracy makes this very point.

A second possible impediment to winning a Third Amendment claim in this case is that the Amendment is one of the few parts of the Bill of Rights that the Supreme Court still has not “incorporated” against state governments. For incorporation purposes, claims against local governments (like this one) are treated the same way as claims against states. On the other hand, the Supreme Court has never ruled that the Third Amendment does not apply to the states. If, as the Court has previously decided, virtually all the rest of the Bill of Rights applies to state governments, there is no good reason to exclude the Third Amendment. If the Third Amendment part of the case is not dismissed on other grounds, the federal district court may have to address the issue of incorporation.

Conservatives and liberals alike love turning the federal courts into a liberty enforcement squad because it allows one stop shopping as they jockey to define our rights for us. As I argued in a recent article, incorporation is a VERY bad and VERY dangerous idea.

By turning to federal courts, they ultimately empower five federal employees to define their rights. And when the federal courts ultimately decide the issue, that decision doesn’t just bind one county or state, it extends to all 350 million-plus Americans.

IF the judges happen to issue the “right” opinion, things move along nicely. But how often do federal judges actually rule in a way that preserves individual liberty?

Almost never!

Consider this case. If the federal courts ultimately hold that police officers do qualify as soldiers and the officers’ actions fit the definition of “quartering,” we have a “win” for liberty (in the short run). But if they don’t, the issue will be considered final. Not just for Mitchell. Not just for citizens of Nevada. But for all 350 million-plus Americans.

This issue should certainly have its day in court, but in the Nevada state court system. You see, the Nevada constitution features a very similar provision in its Declaration of Rights.

Sec: 12. Quartering soldier in private house. No soldier shall, in time of Peace be quartered in any house without the consent of the owner, nor in time of War, except in the manner to be prescribed by law.

Since local and state police fall under the authority of the state. The state constitution governs their actions. It delegates authority to the state government and its agents, and its Declaration of Rights restricts their actions to protect the rights of the people of the state. The U.S. Constitution delegates authority to the federal government. The Bill of Rights was only intended to operate on the government created by the Constitution – not the state governments, as the preamble makes clear.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

(For an in depth discussion of the 14th Amendment and incorporation, click HERE.)

Of course, Mitchell could easily lose his case in state court. But at least the ruling would only bind people in Nevada, leaving the door open for other states to make their own determinations. A loss in federal court means a narrowing of liberty for all Americans. True, civil libertarians won’t get the sweeping nation-wide win they might like with a victory in state court, but it would set a precedent and make the battle easier as it moves to other states.

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Incorporation shreds the fabric of the American system. It distorts the proper delegation of powers, and it places the federal government in a position of supremacy never intended by the founders. They feared centralized systems and monopolized decision making. They would shudder at the notion of five federal judges defining the rights and liberties of every man, woman and child in America with absolute and final authority.

Those who fight for liberty risk losing the war as they clamor for a chance to win the occasional battle. We MUST resist the temptation to run and grovel at the feet of federal employees in Washington D.C. every time some  state or local functionary tramples our rights.

Sure, we MIGHT  win some protection for gun rights at the federal level. We MIGHT win some restrictions on police powers. We MIGHT win some privacy rights. But more often than not, we walk out from between those grand marble pillars at the Supreme Court building with diminished rights “incorporated” across the Fruited Plain. And in the process, we’ve further centralized power in one place.

Power monopolies never work out well for the people.

The only hope for liberty lies in decentralizing our system. That will never happen as long as we insist on making the feds our liberty enforcement squad. We merely empower them, to our detriment.

Mike Maharrey

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