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Apparently, It’s Time to Talk About the Third Amendment

The often forgotten Third Amendment is trending far and wide on social media after Sen. Mike Lee (R-Utah), a constitutional conservative and lawyer, tweeted that it was unconscionable that Washington, D.C. Mayor Muriel Bowser (D) would evict more than a thousand out-of-state soldiers from D.C. hotels.

On Thursday, Bowser said she wanted troops gone.

“The very first thing is we want the military — we want troops from out-of-state out of Washington, D.C.,” the mayor said.

Sen. Lee responded by saying the eviction from hotels was “unacceptable.”

These were Utah Sen. Lee’s two tweets when combined:

Just heard that Mayor Bowser is kicking the Utah National Guard out of all DC hotels tomorrow. More than 1200 troops from 10 states are being evicted. This is unacceptable. These brave men and women have risked their lives protecting DC for three days. Rioting, looting, arson, and vandalism have all disappeared bc these soldiers served. And now they are being kicked to the curb by an ungrateful mayor. This must be stopped.

Sen. Lindsey Graham (R-S.C.) joined in Lee’s outrage:

Few consider the Third Amendment because it just isn’t a part of every day life in America, unlike the First, Second, Fourth and Fifth Amendments, for example. People have over the last few days drawn attention to soldiers “quartering” at Washington, D.C. hotels.

It’s actually become a bit of a meme at this point.

https://twitter.com/dani_kerley/status/1268793671891247104?s=20

https://twitter.com/Khanoisseur/status/1268892382008946688?s=20

Humor is rooted in the absurd, but this is not really a laughing matter.

Active-duty military police and National Guardsmen have been patrolling the streets of D.C. for days. During a Rose Garden speech on Monday, President Donald Trump threatened to invoke the Insurrection Act of 1807 to quell rioting, looting and destruction.

“I am also taking swift and decisive action to protect our great capital, Washington, D.C.  What happened in this city last night was a total disgrace,” Trump said. “As we speak, I am dispatching thousands and thousands of heavily armed soldiers, military personnel, and law enforcement officers to stop the rioting, looting, vandalism, assaults, and the wanton destruction of property.”

Military police and mounted police then “moved the perimeter,” as Attorney General William Barr put it, and controversially cleared out Americans in Lafayette Square who were protesting George Floyd’s killing, systemic racism, and police brutality. This happened just before the president’s polarizing photo op with a Bible.

Here’s what the Third Amendment actually says:

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.

This raises some obvious questions: Are hotels a “house”? Even if they are, what authority does Bowser have to evict troops staying at privately owned hotels if the hotel owners consented? Does “any house” apply to private property more broadly?

Whatever the case, people seem to be in agreement that we need to “stop trying to make the Third Amendment happen.”

The Third Amendment in its origins was, in part, a response to the Quartering Act of 1765, by which the British forced the American colonies to house King George III’s soldiers in barracks. Notably, the Quartering Act of 1765 said that if there wasn’t enough room in barracks, soldiers had to be put up in pubs, inns, wineries, uninhabited houses and more:

That for and during the continuance of this act, and no longer, it shall and may be lawful to and for the constables, tithingmen, magistrates, and other civil officers of villages, towns, townships, cities, districts, and other places, within his Majesty’s dominions in America, and in their default or absence, for any one justice of the peace inhabiting in or near any such village, township, city, district or place, and for no others; and such constables … and other civil officers as aforesaid, are hereby required to billet and quarter the officers and soldiers, in his Majesty’s service, in the barracks provided by the colonies; and if there shall not be sufficient room in the said barracks for the officers and soldiers, then and in such case only, to quarter and billet the residue of such officers and soldiers for whom there shall not be room in such barracks, in inns, livery stables, ale houses, victuallinghouses, and the houses of sellers of wine by retail to be drank in their own houses or places thereunto belonging, and all houses of persons selling of rum, brandy, strong water, cyder or metheglin, by retail, to be drank in houses; and in case there shall not be sufficient room for the officers and soldiers in such barracks, inns, victualling and other publick ale houses, that in such and no other case, and upon no other account, it shall and may be lawful for the governor and council of each respective province in his Majesty’s dominions in America, to authorize and appoint, and they are hereby directed and impowered to authorize and appoint, such proper person or persons as they shall think fit, to take, hire and make fit, and, in default of the said governor and council appointing and authorizing such person or persons, or in default of such person or persons so appointed neglecting or refusing to do their duty, in that case it shall and may be lawful for any two or more of his Majesty’s justices of the peace in or near the said villages, towns, townships, cities, districts, and other places, and they are hereby required to take, hire and make fit for the reception of his Majesty’s forces, such and so many uninhabited houses, outhouses, barns, or other buildings, as shall be necessary, to quarter therein the residue of such officers and soldiers for whom there should not be room in such barracks and publick houses as aforesaid….

The language of the Quartering Act of 1774 similarly said that if barracks weren’t sufficient “uninhabited houses, out-houses, barns, or other buildings” could be used to house troops:

WHEREAS doubts have been entertained, whether troops can be quartered otherwise than in barracks, in case barracks have been provided sufficient for the quartering of all officers and soldiers within any town, township, city, district, or place, within his Majesty’s dominions in North America: And whereas it may frequently happen, from the situation of such barracks, that, if troops should be quartered therein, they would not be stationed where their presence may be necessary and required: be it therefore enacted by the King’s most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, That, in such cases, it shall and may be lawful for the persons who now are, or may be hereafter, authorised be law, in any of the provinces within his Majesty’s dominions in North America, and they are hereby respectively authorised, impowered, and directed, on the requisition of the officer who, for the time being, has the command of his Majesty’s forces in North America, to cause any officers or soldiers in his Majesty’s service to be quartered and billetted in such manner as is now directed by law, where no barracks are provided by the colonies.

II. And be it further enacted by the authority aforesaid, That if it shall happen at any time that any officers or soldiers in his Majesty’s service shall remain within any of the said colonies without quarters, for the space of twenty-four hours after such quarters shall have been demanded, it shall and may be lawful for the governor of the province to order and direct such and so many uninhabited houses, out-houses, barns, or other buildings, as he shall think necessary to be taken, (making a reasonable allowance for the same), and make fit for the reception of such officers and soldiers, and to put and quarter such officers and soldiers therein, for such time as he shall think proper.

III. And be it further enacted by the authority aforesaid, That this act, and every thing herein contained, shall continue and be in force, in all his Majesty’s dominions in North America, until the twenty-fourth day of March, one thousand seven hundred and seventy-six.

It’s not a stretch to say that the Founders would have envisioned “any house” through this lens when crafting the Third Amendment. But the clause “without the consent of the Owner” still looms large here.

In fact, this subject was one of the rare instances in which Federalist and Anti-Federalists came to agree in their anonymous letter writing campaigns. Anti-Federalists also voted against ratifying the Constitution because they believed there were not enough protections against raising standing armies. The Third Amendment was eventually developed as sort of a compromise against colonial fears–memories, really–of standing armies.

It was reported later on Friday by CBS News that Secretary of Defense Mark Esper ordered active duty troops in the capital region to go back to their home bases.

Colin Kalmbacher contributed to this report.

[Image via NBC screengrab]

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Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.