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Third Amendment

I’m not 100% sure of what to make of this story.

The family is alleging that the police forced them from their house in order for the police to use it for surveillance purposes, at one point using force to gain control of the premises, which is awful, but boring. What makes this interesting is that the suit is being brought, at least in part, under the third amendment, the one that prohibits the involuntary quartering of soldiers in private homes during peace or war.

One has to imagine that lawyers everywhere salivate over the idea of being able to be the first to argue and prevail on a point of law.

Now, on the one hand, it seems more of a search and seizure (the fourth amendment), or perhaps more likely an eminent domain (the fifth amendment), issue. However, on the other hand, the police are to a large extent soldiers in that they perform many of the duties that the government would have used soldiers to do 200+ years ago.

One point that I will make is that the Bill of Rights does not create rights, it recognizes preexisting ones, so even the repeal of any of the first 10 amendments would, at least in theory, change little case law. The Bill of Rights also makes it clear that the list of rights is not complete, and that other rights exist, thus many rulings hinge on the underlying ideas and concepts of the recognized rights, in this case privacy in the home* might be the issue and that may indeed be something the court will find underlays the third amendment.

I have no idea what to think of this, and no idea what will happen as a result. If I had to choose an outcome, I don’t think they will win based on the third amendment, I think they will succeed in some way, just not under that part of the Bill of Rights.

But I do like shiny new things, including legal arguments, so I’ll hold out hope, as forlorn as that hope is like to be.

*Privacy in the home in instances where the occupants or owners are not being charged with or investigated for a crime, where no property seizure for evidence or other proof of wrong doing, as such, is taking place, and where the partial use of the home is being retained. In that case, even if police are not considered soldiers in any sense, the third amendment may still offer some protection because of the light it sheds on the rights not specifically listed in the Bill of Rights.

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Categories: Uncategorized
  1. 2013/08/01 at 20:05

    One point that I will make is that the Bill of Rights does not create rights, it recognizes preexisting ones

    If you extend this argument to the other amendments, and I don’t see why you wouldn’t, then can you please explain how voting at 18 is an inherent right that does not depend upon government? Does it come from God? Nature? Libertarianism?

  2. 2013/08/15 at 00:04

    Well… Thanks actually, you give me a good idea for a post.

  1. 2013/08/27 at 07:46

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