Module 17: The Third Amendment

How We Got Here: From the Petition of Right to the Intolerable Acts

The Third Amendment is 32 words long, shorter than all but four of the first ten, and the Supreme Court has never applied it to decide a case. It was not written by people who thought the subject was minor. They had lived through it, and so had their grandparents, and so had the English whose liberties they claimed as their own.¹

Armies need beds. For most of history the cheapest bed was somebody else's. The practice goes back at least to the Roman Republic, where governors used billeting as a tool of oppression and a source of income. In England the fight is on paper by 1628. The Petition of Right, which Parliament forced on Charles I that year, complained that "great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses, and there to suffer them to sojourn against the laws and customs of this realm."²³

The problem outlived the king. In 1679 Parliament passed an Anti-Quartering Act: "Noe officer military or civill nor any other person whatever shall from henceforth presume to place quarter or billet any souldier or souldiers." Ten years later the Declaration of Rights, enacted as the English Bill of Rights of 1689, listed among the crimes of James II "raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law." The Mutiny Act of 1689 then wrote limits on quartering into the law that governed the army itself.²⁴

The colonies were left out

Those protections stopped at the water. According to the Constitution Annotated, the Mutiny Act's limits on quartering did not extend to the colonies, where involuntary quartering continued, and Parliament did not carry them across the Atlantic until 1765. Some colonial legislatures had tried to regulate the practice on their own. New York's Assembly passed a 1683 Charter of Libertyes and Privilidges under which "Noe Freeman shall be compelled to receive any Marriners or Souldiers into his house and there suffer them to Sojourne, against their willes," unless it was a time of actual war.²

The Quartering Act of 1765 (5 Geo. 3, c. 33) forbade quartering in private homes, according to the Constitution Annotated, but it required the colonies to bear the cost of barracks and supplies for British soldiers. Where the barracks ran out, officers and soldiers could be placed in "inns, livery stables, ale-houses, victualling-houses," and other such establishments. The Second Circuit later described the act the same way, as requiring "the American colonists to bear the cost of feeding and sheltering British troops stationed in this country."

The Constitution Annotated reports that the friction over the act helped lead to outright conflict, one notable example being the Boston Massacre of 1770.²⁵

The colonists argued the law as well as the grievance. In October 1768 Samuel Adams asked readers of the Boston Gazette whether the act on quartering and billeting had been "TRANSGRESS'D" when the barracks at the Castle, "SUFFICIENT TO CONTAIN MORE than the whole number of soldiers now in this town," were refused. The point was that the statute itself put barracks first.⁶

After the Boston Tea Party Parliament passed the Coercive Acts of 1774, which the colonists called the Intolerable Acts. One was a new Quartering Act (14 Geo. 3, c. 54) that let officers seize "uninhabited houses, out-houses, barns, or other buildings" when barracks were not available. Historians disagree about whether that act reached occupied private homes. The Second Circuit read it that way in Engblom v. Carey, as did Fields and Hardy, a legal history the Constitution Annotated cites. David Ammerman, another source the Annotated cites, wrote that the act "did not, as has often been asserted, provide for billeting soldiers in private homes."²⁷ What nobody disputes is that the colonists believed it did. On October 14, 1774, the First Continental Congress resolved that "the keeping a standing army in these colonies, in times of peace, without the consent of the legislature of that colony, in which such army is kept, is against law," and listed the quartering act among the laws it condemned.⁸

The Declaration and the state bills of rights

Two of the Declaration of Independence's grievances against George III are about the military. "He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. He has affected to render the Military independent of and superior to the Civil power." And later, in the list of "pretended Legislation," Parliament's acts "For Quartering large bodies of armed troops among us."⁹

The new states answered in their own constitutions. The Virginia Declaration of Rights of 1776 said that "standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power," but it had no clause on quartering. Four states did write one: Delaware in 1776, Maryland in 1776, Massachusetts in 1780 and New Hampshire in 1784. Delaware's, section 21 of its Declaration of Rights, set the pattern: "That no Soldier ought to be quartered in any House in Time of Peace without the Consent of the Owner; and in Time of War in such Manner only as the Legislature shall direct." Massachusetts used nearly the same words in article XXVII, and put wartime quartering in the hands of "the civil magistrate, in a manner ordained by the legislature."¹⁰²¹¹

The 1787 Constitution said nothing on the subject. It gave Congress the power "to raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years," made the President "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States," and left billeting open.¹²

The Text

"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."

U.S. Const. amend. III, as transcribed by the National Archives

Congress proposed it on September 25, 1789, as "Article the fifth" of twelve. The First Amendment was "Article the third," so the numbering the country uses today came from which articles the states ratified, not from the order Congress sent them. Ten of the twelve were ratified by December 15, 1791.¹³

Few courts have had a reason to read the clause closely, so most of what follows comes from the text, the history and the handful of cases below.

"Soldier"

The word is the most contested in the clause. Does it reach only members of the regular army and navy, or does it include National Guard members, reservists, military police, or civilian police who carry weapons and wear uniforms? A federal judge in Nevada held in 2015 that municipal police officers are not "soldiers" because a police officer "is not understood to be part of the military." The Second Circuit held in 1982 that National Guardsmen are "Soldiers" within the Third Amendment, and that they are, "except perhaps when 'federalized' by unit," state employees under a governor's control.¹⁴¹⁵

"in time of peace"

The consent of the owner is required in peacetime with no exceptions. The text does not say when peace ends. Nobody appears to have asked a court to decide whether a counterterror deployment, a border mission or a disaster response counts as "war" for this clause, and this lesson could not find a decision on it.

"quartered"

To quarter is to lodge, to put soldiers into a place to live. It is different from searching a house (the Fourth Amendment), taking it (the Takings Clause in the Fifth), or entering it briefly. The same Nevada judge held that occupying a home for less than a day did not amount to quartering, in a case discussed below.

"any house"

Founding-era "house" was a broader word than the one we use. The Quartering Act of 1765 listed "inns, livery stables, ale-houses, victualling-houses" among the places soldiers could be put. The Second Circuit read it more broadly than a deed would, extending protection to people with a lawful right of possession and the power to exclude others, such as tenants.¹⁴⁵

"without the consent of the Owner"

Consent is the gate. A person can invite soldiers in, and the amendment does not apply. The word "Owner" might mean the title holder only, but Engblom concluded it covers anyone whose possession is the kind "recognized and permitted by society as founded on lawful occupation or possession with a legal right to exclude others."¹⁴

"nor in time of war, but in a manner to be prescribed by law"

In war the Third Amendment does not say "never." It says Congress, and not a commanding officer, decides how. Justice Jackson used the clause in 1952 to make a point about the limits of presidential power: "Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States," he wrote, because the Third Amendment requires that even a wartime seizure of housing be authorized by Congress.¹⁶

The Drafting: Madison, the House and the Anti-Federalists

The convention that wrote the Constitution did not discuss quartering. The ratification fight did. The Anti-Federalist essayist known as the Federal Farmer asked his readers on January 20, 1788: "In the exercise of these powers, is there any provision in the constitution to prevent the quartering of soldiers on the inhabitants? you will answer, there is not." He expected the reply to be that the claim to an exemption rested only on "custom and opinion," and that state constitutions had no control over the federal government.¹⁷

At the Virginia ratifying convention on June 16, 1788, Patrick Henry said: "One of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasons for dissolving the connection with Great Britain. Here we may have troops in time of peace." They might be billeted, he said, in any manner, to oppress the people. James Madison answered that the original complaint was broader than quartering. The colonists objected because standing armies were kept among them "without the local authority of this country" and without "the consent of the people of America." Most state bills of rights, he said, banned standing armies only without legislative consent, and "the only possible way to provide against standing armies is to make them unnecessary."¹⁸

Madison carried the point into the First Congress. On June 8, 1789, among the amendments he proposed to the House was this one: "No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law." The House committee reworked it to the version that is in the Constitution today, with "nor in time of war" replacing "nor at any time."¹⁹

The only floor debate, August 17, 1789

The House took up the clause as the fourth clause of the fourth proposition on August 17. Four members spoke, according to the Annals of Congress. Mr. Sumter of South Carolina hoped soldiers "would never be quartered on the inhabitants, either in time of peace or war, without the consent of the owner." It was "a burthen, and very oppressive, even in cases where the owner gave his consent." He moved to cut everything after the word "owner."

Roger Sherman answered that "it was absolutely necessary that marching troops should have quarters, whether in time of peace or war, and that it ought not to be put in the power of an individual to obstruct the public service." In England, he noted, troops were billeted on the keepers of public houses and on private houses too, with the consent of the magistracy. Sumter's motion lost "by a majority of sixteen." Elbridge Gerry then moved to insert "by a civil magistrate" before "in a manner," observing that every part of the Union had access to such authority. Mr. Hartley objected that the legislature should decide, since "the public safety would be endangered by putting it in the power of one person to keep a division of troops standing in the inclemency of the weather for many hours." The Annals record no vote on Gerry's amendment in the passage Founders' Constitution reprints, and the final text has no "civil magistrate" clause.²⁰

That is the whole of the recorded debate. Sumter wanted the exception for war cut. Gerry wanted a civil magistrate in the chain. Sherman and Hartley wanted the decision left to the legislature. The House kept the committee's text, which leaves the rules for war to Congress and not to the soldier or the householder.

Early commentary

St. George Tucker's 1803 edition of Blackstone said the clause "seems by a kind of side wind, to countenance, or at least, not to prohibit" standing armies in time of peace, and that the billeting of soldiers "has been generally found burthensome to the people, and so far as this article may prevent that evil it may be deemed valuable; but it certainly adds nothing to the national security." Justice Story wrote in 1833 that the provision "speaks for itself," securing "that great right of the common law, that a man's house shall be his own castle, privileged against all civil and military intrusion." Justice Samuel Miller's lectures of 1891 agreed that the clause "seems to have been thought necessary" and "is so thoroughly in accord with all our ideas, that further comment is unnecessary."²¹²²

What the Amendment Does: Home and Command

Scholars and courts have read the clause as a rule about the military and as a rule about the home, and the cases lean on both.

One reading is about civilian control of the military. The grievance in 1776 was that the King "affected to render the Military independent of and superior to the Civil power." On that reading the Third Amendment belongs with the two-year limit on army appropriations, the Commander in Chief Clause, congressional power over the militia, and state bills of rights such as Virginia's, which said "the military should be under strict subordination to, and be governed by, the civil power." In war it says Congress, not a general, writes the rules.

The other reading is about the home. The Second Circuit called it "designed to assure a fundamental right of privacy." The Supreme Court said the same in two footnotes. In Griswold v. Connecticut (1965), Justice Douglas listed "various guarantees" that "create zones of privacy," and wrote that the Third Amendment "in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy." In Katz (1967), a footnote called its ban on peacetime quartering "another aspect of privacy from governmental intrusion." The Second Circuit cited Griswold and the opinions of Justices Douglas and Harlan in Poe v. Ullman (1961) for the same view.²³²⁴¹⁴

In Laird v. Tatum (1972), the Court used the clause the first way. A challenge to Army surveillance of civilians reflected, it said, "a traditional and strong resistance of Americans to any military intrusion into civilian affairs," a tradition that "found early expression, for example, in the Third Amendment's explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military."²⁵

The two readings can come apart in a hard case. A police department that takes over a neighbor's house for a tactical operation implicates the home but not the military. A Guard unit housed in a state-owned dormitory implicates the military but arguably not a private house. The courts so far have applied the text narrowly and stopped.

The surrounding rules

Congress has made one statutory addition to the structure. The Posse Comitatus Act, 18 U.S.C. § 1385, makes it a crime, punishable by up to two years in prison, to willfully use the Army, Navy, Marine Corps, Air Force or Space Force "as a posse comitatus or otherwise to execute the laws," except where the Constitution or an Act of Congress expressly allows it. It says nothing about housing, but it belongs to the same tradition of keeping the military out of civilian life. This lesson could not confirm any 2025 or 2026 decision that rests on the Third Amendment itself.²⁶

Does It Bind the States? Incorporation

Like the rest of the Bill of Rights, the Third Amendment limited only the federal government when it was ratified (Module 10 covers the Fourteenth Amendment and incorporation). The Supreme Court has incorporated most of the first eight amendments against the states one at a time. It has never ruled on the Third.

The Second Circuit did. In Engblom v. Carey (1982), the court wrote: "we agree with the district court that the Third Amendment is incorporated into the Fourteenth Amendment for application to the states." The district court had written that it "should not be necessary to wander too far into the thicket of incorporation jurisprudence" because "under any of the theories extant" the right not to have troops quartered in one's home was incorporated. The Second Circuit cited Justice Harlan's concurrence in Griswold, which described the right as "implicit in the concept of ordered liberty."¹⁴²⁷

The question mattered in Engblom because the troops were state troops, ordered in by a governor. Outside the Second Circuit the question is open. A judge elsewhere is free to follow Engblom as persuasive authority, to wait for the Supreme Court, or to apply the test in McDonald v. City of Chicago (2010) and ask whether the right is "fundamental to the Nation's scheme of ordered liberty," or, as the Court has said in a related context, "deeply rooted in this Nation's history and tradition." The history here is about as deep as it gets: the Declaration of Independence names the grievance, and at least four state constitutions had a quartering clause before the federal one was written.²⁸²

Engblom v. Carey: The Case Everyone Cites

In April 1979 correction officers across New York went on strike. On April 18 Governor Hugh Carey issued a proclamation activating the National Guard. At the Mid-Orange Correctional Facility in Warwick, two striking officers, Marianne Engblom and Charles Palmer, lived in staff housing on prison grounds, in rooms with private or semi-private baths and shared kitchens. The facility's housing documents called them "tenants," took $36 a month from each occupant's pay as "rent," and allowed eviction only after an investigation and six months' written notice. On April 19 Guard units began arriving, and on April 21 the superintendent declared an emergency. The Guard at Mid-Orange eventually reached a maximum force of 260. The striking officers were evicted from their rooms without notice, and the rooms were used to house Guardsmen.¹⁴

Engblom and Palmer sued the governor and other officials under 42 U.S.C. § 1983, claiming a violation of due process and of the Third Amendment. Judge Robert Sweet of the Southern District of New York ruled for the defendants (522 F. Supp. 57). The Second Circuit, in an opinion by Judge Mansfield, wrote that "for the first time a federal court is asked to invalidate as violative of the Third Amendment the peacetime quartering of troops." The panel held:

• Guardsmen are "Soldiers." They count under the clause, and unless they are "federalized" by unit, they are state employees under the governor.
• The amendment binds the states. It is incorporated into the Fourteenth Amendment.
• The occupants might count as "Owners." Property-based privacy interests protected by the Third Amendment "are not limited solely to those arising out of fee simple ownership but extend to those recognized and permitted by society as founded on lawful occupation or possession with a legal right to exclude others." The court could not say as a matter of law that the officers lacked that interest, so it reversed the summary dismissal.
• The due process claim failed. Post-deprivation procedures were adequate, so the lack of a hearing before eviction did not violate due process. The court affirmed that part on different grounds from the district court.

Judge Irving Kaufman, concurring in part and dissenting in part, would have gone further in recognizing the officers' interest, writing that "although a man's home is his castle under the Third Amendment, it is not the case, as Gertrude Stein might say, that a house is a house is a house." On remand the district court again ruled for the state, finding the officials protected by qualified immunity, and the Second Circuit affirmed on December 20, 1983 because the Third Amendment right in these circumstances was not "clearly established at the time of the events in question."¹⁴²⁹

So the one appeals court to take the amendment seriously found a violation plausible and still sent the plaintiffs home empty-handed. The Constitution Annotated notes that the Second Circuit "did not reach the issue of whether the State of New York violated the plaintiffs' Third Amendment rights because it decided the case on procedural grounds," and counts only the Southern District of New York and the Second Circuit among the lower federal courts that have examined the amendment in depth.²¹

Other Cases: Airspace, Police and the Limits of the Text

Custer County Action Association v. Garvey (10th Cir. 2001)

Local governments, ranch owners and conservation groups in Colorado challenged an Air National Guard and FAA military airspace initiative. Their theory under the Third Amendment was that "military overflights occurring in the immediate reaches of their property during peacetime, and without their consent, 'are per se unconstitutional.'" The Tenth Circuit began with the observation that "judicial interpretation of the Third Amendment is nearly nonexistent," read Engblom, and then wrote that the airspace argument "borders on frivolous." In Engblom, it explained, the officers' rooms "were, for all intents and purposes, their homes," while the petitioners here wanted to protect the sky above their land. The Third Amendment, in short, is about housing soldiers.³⁰

Mitchell v. City of Henderson (D. Nev. 2015)

The plaintiffs said Henderson, Nevada, police officers ordered them out of their home so the officers could use it as a position during a domestic-violence call next door. U.S. District Judge Andrew Gordon dismissed the Third Amendment claim for two reasons: municipal police officers are not "soldiers," and occupying the house for about nine hours (less than a day) was not "quartering." According to the Nevada Lawyer account, he read the clause in light of its history as a response to the Quartering Acts and as a protection against military incursion. The Brennan Center called the case a candidate for the last federal decision to take up the amendment. It is a district court ruling and persuasive authority only, and it turned on definitions, not on whether the police behaved well. The plaintiffs raised other claims "among other things," the Brennan Center says. This lesson could not open the opinion itself and relies on two published secondary accounts for its facts.³¹

What the Supreme Court has said

Only in passing, as shown above: Griswold, Katz, Laird and Justice Jackson's concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). The Constitution Annotated says the Court "has never decided a case directly implicating the Third Amendment and has cited it only in a handful of opinions."³²

Open Questions and How the Readings Differ

Nobody knows how the current Court would read the clause, since it has not had to. The methods that dominate constitutional argument today point in different directions, and a lesson that picked one would mislead.

Textual and originalist approaches

A reader who starts from the words and their meaning in 1791 would hold the line the Nevada judge held in Mitchell. "Soldier" meant a member of the armed forces, a "house" was a dwelling or a public house, and "quartered" meant lodged. On that reading the amendment has little to say about police, Guard members acting under a governor, or temporary occupation of a building for tactical reasons. A critic of this approach would reply that it reads a clause adopted against a 1760s army as if it had no purpose.

Purposive and functional approaches

A reader who starts from the purposes sees the clause as one guard against military power in civilian life, and might extend it to the modern forms of armed state force. Engblom took a step in that direction by treating Guardsmen as "Soldiers" and tenants as "Owners," with the "functionally their homes" reasoning. Critics respond that this makes the text depend on a judge's view of what is military, with nothing in the 1791 meaning to hold the line.

Analogy

Leonard Niehoff, a University of Michigan professor interviewed by the Brennan Center in 2022, suggested that the Supreme Court's emphasis on historical analogy in New York State Rifle & Pistol Ass'n v. Bruen (2022) might open new room for Third Amendment arguments, though he noted the tension: a strict originalist, he said, might not care about modern analogues at all. Whether a heavily armed police team that takes over a home counts as a historical analogue of a quartered soldier is the kind of question that method invites.³³

Where the law is settled and where it is not

• Settled: the text; that peacetime quartering of regular soldiers in a house without the owner's consent is forbidden to the federal government; that the Supreme Court has used the amendment as evidence of a constitutional concern for privacy and civilian control.
• Settled only in the Second Circuit: incorporation, that Guardsmen are soldiers, and that tenants can be "Owners."
• Open everywhere: whether police are covered; how long an occupation must last to count as quartering; what "time of war" means; whether the Supreme Court will ever incorporate the clause.

Soldiers, Disasters and Housing in Practice

Most of the time the government does not need to quarter soldiers in private homes. It builds bases, rents housing, and pays allowances. Congress also learned long ago that quartering without consent costs money. After the War of 1812 it authorized compensation for property damage from soldiers occupying homes, such as the Act of April 17, 1822, which authorized payment "for the loss of a house by fire . . . while, without the consent of the owner, it was occupied by the troops of the United States." The Constitution Annotated reports that the United States quartered troops in the War of 1812 and the Civil War, but "there do not appear to have been any cases alleging Third Amendment violations based on this quartering."²¹

Disaster law raises a related question that is easy to confuse with the Third Amendment. When a governor activates the Guard after a flood, the Guard might use a private building as a staging point. Compensation then runs under the Takings Clause and state statutes, which Module 19 covers, and consent is usually obtained. The Third Amendment would matter only if troops moved into a home over the owner's objection, during peace, and lived there.

Myths and Misreadings

• "It is obsolete." Some scholars call it an "interesting study in constitutional obsolescence." The Supreme Court uses it as evidence of two continuing ideas, privacy in the home and civilian control of the military. And Engblom shows a modern fact pattern can arise.
• "It stops the police from using your house." A Nevada federal court held that it does not, on the ground that police are not soldiers. Other protections apply to police: the Fourth Amendment and its state counterparts, and takings law.
• "It stops soldiers from ever entering a private building." It restricts quartering, the lodging of soldiers, and it has an exception for consent and a different rule for war.
• "It was a response to the Boston Massacre." The quartering grievances came earlier and later: the Petition of Right (1628), the Quartering Act of 1765, the Coercive Acts of 1774. The Massacre happened in 1770 in a town where soldiers were stationed under the contested 1765 act.
• "It means the government can quarter soldiers in wartime freely." It does not. It requires a "manner to be prescribed by law," which Justice Jackson read in Youngstown to require authorization from Congress.
• "Third Amendment claims have never succeeded." Mostly true. No reported federal decision this lesson found has awarded relief on one. The Second Circuit reversed a dismissal in Engblom but the plaintiffs lost on immunity.

Short Q&A

Can the government make me host soldiers in my house? Not in peacetime without your consent, under the federal Constitution. In wartime only as Congress prescribes. Idaho's own constitution says the same, in nearly the same words.

Does it apply to a rented apartment? The Second Circuit held in Engblom that a tenant with a lawful right to exclude others can be an "Owner." Other circuits have not decided.

Why does a clause this obscure matter? It records a founding idea: that the home comes first, and that the military answers to civilians. Courts cite it when they explain why other privacy guarantees exist.

Landmark Cases

Each case was checked against the opinion text where this lesson could open it. The Third Amendment has almost no case law, so the table includes opinions that cite the clause in passing.

The Idaho Connection

Idaho's constitution carries its own quartering clause. Article I, section 12 reads in full: "The military shall be subordinate to the civil power; and no soldier in time of peace shall be quartered in any house without the consent of its owner, nor in time of war except in the manner prescribed by law." It is in Article I, the Declaration of Rights, and this lesson verified its text on the Idaho Legislature's website.³⁴

• It applies to Idaho. Because it is in the state constitution, the question of whether the federal clause is incorporated does not decide an Idaho case. A claim could rest on § 12 directly.
• It says more than the federal text. The first clause, that "the military shall be subordinate to the civil power," is a rule of state constitutional law that the federal amendment does not contain, though the Declaration of Independence and the Virginia Declaration of Rights state the idea.
• It says "its owner." The federal amendment says "the Owner." Whether a tenant can invoke the Idaho clause as the Second Circuit allowed under the federal one has not been tested in any decision this lesson found.

This lesson could not find any reported Idaho appellate decision applying article I, section 12, and it did not locate the constitutional convention's debate on the section in any source it opened.

The military in Idaho's structure of government

• Governor. Article IV, section 4 makes the governor "commander-in-chief of the military forces of the state, except when they shall be called into actual service of the United States," with power "to call the militia to execute the laws, to suppress insurrection, or to repel invasion."³⁵
• Militia. Article XIV, section 1 provides for enrollment in the militia and for such military duty as the law requires.³⁵
• Disaster emergencies. Idaho Code § 46-1008 lets the governor, in a declared disaster emergency, be commander-in-chief of the militia, direct evacuations, and control "the occupancy of premises." Under § 46-1008(5)(d), "subject to any applicable requirements for compensation under section 46-1012, Idaho Code," the governor may "commandeer or utilize any private property, real or personal, if he finds this necessary to cope with the disaster emergency." A declared emergency lasts no more than 30 days unless the governor extends it for another 30, and the legislature can end it by concurrent resolution.³⁶
• Compensation. Idaho Code § 46-1012 provides that compensation for commandeered property is due "only if the property was commandeered or otherwise used in coping with a disaster emergency and its use or destruction was ordered by the governor or his representative," and then only to the extent the owner's obligations to help in a disaster are exceeded. The claim is filed with the state office of emergency management.³⁶

Whether a governor's order to commandeer a private building for Guard use in a disaster could ever be a Third Amendment problem under § 12 depends on the unsettled meanings discussed above. It would raise at least the question of whether the emergency is a "time of war" with a manner "prescribed by law," and the statute is the manner prescribed.

Where This Shows Up for Officials, Reporters and Citizens

The emergency manager planning for a flood

Emergency Manager Dana Whitcomb of an invented county plans for a spring flood. Her plan lists a church hall, a school gym and a motel as shelters, and she wants the Guard to stage in a closed supermarket. She gets written consent from each owner in advance. A signed agreement does three things: it avoids a Third Amendment or takings argument, it fixes the compensation terms before anyone is in a hurry, and it gives the owner a record. The governor's powers under Idaho Code § 46-1008 are for the case in which agreement fails.³⁶

The police chief with a tactical team

A small-town police chief, Sam Okafor, wants his team to be able to use a neighbor's apartment as an observation post. Under Mitchell a federal court held police are not "soldiers." That does not make the occupation lawful. The Fourth Amendment and Idaho's article I, section 17 govern entry, and compensation runs through takings law. A written consent, signed in advance, is cleaner for everyone.³¹

The reporter covering a deployment

A reporter covering a National Guard activation can ask for the governor's executive order and the proclamation, which Idaho Code § 46-1008(2) says shall, unless circumstances prevent it, be promptly filed with the Idaho office of emergency management, the secretary of state and the recorder of each affected county. The order states the nature of the disaster, the area, and the conditions. If the Guard occupies private property, the follow-up questions are who consented, whether the owner has a written agreement, and whether a claim has been filed under § 46-1012.³⁶

The resident asked to host

A resident asked to open a home to uniformed personnel can say no in peacetime. The Idaho disaster statute gives the governor power to commandeer private property during a declared emergency, with compensation rules, and how that power fits with article I, section 12 where soldiers would live in the home has not been decided. Saying yes, in writing, with terms for damage and duration, is within the resident's rights too.

The county commissioner approving military housing

When a new barracks or Guard facility comes up for a local approval, the question is land use, and the Third Amendment is not the tool for it. The amendment is about placing soldiers in occupied homes without consent. A commissioner who hears a resident invoke it against a new barracks can explain that the clause is about private homes and consent.

Related Modules

• Module 2, Article I: Congress: the Army Clause, the two-year appropriations limit and the militia clauses.
• Module 3, Article II: The President: the Commander in Chief Clause.
• Module 5, Federalism and the States: state militias and the Supremacy Clause.
• Module 8, The Second Amendment: the other Bill of Rights clause about militias and armies.
• Module 18, The Fourth Amendment: the companion clause on houses and searches.
• Module 19, The Fifth Amendment: takings and just compensation.
• Module 10, The Civil War Amendments: the Fourteenth Amendment and incorporation.

Sources & Further Reading

Primary Sources

• National Archives, The Bill of Rights: A Transcription
• National Archives, The Constitution of the United States: A Transcription
• National Archives, Declaration of Independence: A Transcription
• The Founders' Constitution, Bill of Rights, Doc. 11: House of Representatives, June 8 to Aug. 19, 1789 (Annals of Congress)
• The Founders' Constitution, Amendment III, Doc. 9: House debate, Aug. 17, 1789
• The Founders' Constitution, Amendment III, Doc. 8: Virginia ratifying convention, June 16, 1788
• The Founders' Constitution, Amendment III, Doc. 7: Federal Farmer no. 16
• The Founders' Constitution, Amendment III, Doc. 10: St. George Tucker, Blackstone's Commentaries (1803)
• Avalon Project, English Bill of Rights 1689
• Petition of Right 1628 (Constitution Society)
• Avalon Project, Virginia Declaration of Rights (1776)
• Massachusetts Constitution (1780), art. XXVII
• Idaho Constitution, art. I, § 12
• Idaho Code § 46-1008 and § 46-1012

Court Opinions

• Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982)
• Engblom v. Carey, 724 F.2d 28 (2d Cir. 1983)
• Custer County Action Ass'n v. Garvey, 256 F.3d 1024 (10th Cir. 2001)
• Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Katz v. United States, 389 U.S. 347 (1967)
• Laird v. Tatum, 408 U.S. 1 (1972)

Secondary Sources and Further Reading

• Constitution Annotated, Amdt3.1: Overview of the Third Amendment
• Constitution Annotated, Amdt3.2: Historical Background
• Constitution Annotated, Amdt3.3: Government Intrusion and the Third Amendment
• Brennan Center for Justice, What Is the Third Amendment, and Will the Supreme Court Ever Examine It Again?
• Steven M. Silva, "No Quarter; Just Flapjacks," Nevada Lawyer (Jan. 2023)
• 18 U.S.C. § 1385 (Posse Comitatus Act)

Footnotes

1. National Archives, The Bill of Rights: A Transcription, https://www.archives.gov/founding-docs/bill-of-rights-transcript. The amendment's text is 32 words by this lesson's count of the transcription. The Constitution Annotated says the Supreme Court "has never decided a case directly implicating the Third Amendment," https://www.law.cornell.edu/constitution-conan/amendment-3/overview-of-third-amendment-quartering-soldiers.
2. Constitution Annotated, Amdt3.2, Historical Background on Third Amendment, https://www.law.cornell.edu/constitution-conan/amendment-3/historical-background-on-third-amendment. Source for the Roman practice, the 1628 Petition of Right, the Anti-Quartering Act of 1679 (31 Car. 2, c. 1), the Mutiny Act of 1689, New York's 1683 Charter, the Quartering Acts of 1765 (5 Geo. 3, c. 33) and 1774 (14 Geo. 3, c. 54), the Boston Massacre, the Fields and Hardy and Ammerman disagreement about the 1774 Act, and the four state clauses (Del. 1776 § 21, Md. 1776 art. XXVIII, Mass. 1780 art. XXVII, N.H. 1784 art. I, § XXVII).
3. Petition of Right 1628, § VI, https://www.constitution.org/eng/petright.htm. Also listed in the official statute index at https://www.legislation.gov.uk/aep/Cha1/3/1/contents.
4. English Bill of Rights 1689 (Declaration of Rights), Avalon Project, https://avalon.law.yale.edu/17th_century/england.asp: "By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law."
5. Quartering Act of 1765 as described in Engblom v. Carey, 677 F.2d 957, 960 (2d Cir. 1982), https://law.resource.org/pub/us/case/reporter/F2/677/677.F2d.957.81-7769.732.html ("inns, livery stables and ale houses"), and in the Constitution Annotated, note 2 above. This lesson did not open the text of the 1765 statute itself.
6. Samuel Adams, Boston Gazette, Oct. 17, 1768, in The Founders' Constitution, vol. 5, Amendment III, Doc. 2, https://press-pubs.uchicago.edu/founders/documents/amendIIIs2.html.
7. The Second Circuit's description of the 1774 Act is in Engblom, 677 F.2d at 960, cited at note 5. The competing readings, Fields and Hardy against Ammerman, are quoted in the Constitution Annotated, note 2 above.
8. Continental Congress, Declaration and Resolves, Oct. 14, 1774, The Founders' Constitution, vol. 5, Amendment III, Doc. 3, https://press-pubs.uchicago.edu/founders/documents/amendIIIs3.html.
9. Declaration of Independence, National Archives, https://www.archives.gov/founding-docs/declaration-transcript. Also reprinted as Amendment III, Doc. 5 in The Founders' Constitution, https://press-pubs.uchicago.edu/founders/documents/amendIIIs5.html.
10. Virginia Declaration of Rights, § XIII (1776), Avalon Project, https://avalon.law.yale.edu/18th_century/virginia.asp.
11. Delaware Declaration of Rights and Fundamental Rules, § 21 (Sept. 11, 1776), The Founders' Constitution, vol. 5, Amendment III, Doc. 6, https://press-pubs.uchicago.edu/founders/documents/amendIIIs6.html. Massachusetts Constitution (1780), art. XXVII, https://malegislature.gov/laws/constitution: "In time of peace, no soldier ought to be quartered in any house without the consent of the owner; and in time of war, such quarters ought not to be made but by the civil magistrate, in a manner ordained by the legislature."
12. U.S. Const. art. I, § 8, cl. 12; art. II, § 2, cl. 1, National Archives, https://www.archives.gov/founding-docs/constitution-transcript.
13. National Archives, The Bill of Rights: A Transcription, note 1 above. The transcription lists the Third Amendment as "Article the fifth" and the Fourth as "Article the sixth." The statement that ten of the twelve articles were ratified by December 15, 1791 is from the same page.
14. Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982) (Mansfield, J.; Kaufman, J., concurring in part and dissenting in part), https://law.resource.org/pub/us/case/reporter/F2/677/677.F2d.957.81-7769.732.html. Quotations in this lesson on "first time," Guardsmen as "Soldiers," incorporation, "lawful occupation or possession," "functionally their homes," "designed to assure a fundamental right of privacy" and the Stein line, and the facts of the April 1979 strike, are from this opinion. The decision date, May 3, 1982, is from the opinion's header.
15. Mitchell v. City of Henderson, No. 2:13-cv-01154-APG-CWH, 2015 WL 427835 (D. Nev. Feb. 2, 2015), as cited in Steven M. Silva, "No Quarter; Just Flapjacks," Nevada Lawyer (Jan. 2023), https://nvbar.org/wp-content/uploads/NevadaLawyer_Jan2023_No-Quarter.pdf. The article reports that Judge Gordon concluded municipal police officers "were not 'soldiers,' because a police officer is not understood to be part of the military." This lesson did not open the opinion.
16. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., concurring), https://www.law.cornell.edu/supremecourt/text/343/579.
17. Federal Farmer no. 16 (Jan. 20, 1788), in The Founders' Constitution, vol. 5, Amendment III, Doc. 7, https://press-pubs.uchicago.edu/founders/documents/amendIIIs7.html.
18. Debate in the Virginia Ratifying Convention, June 16, 1788 (Henry; Madison), Elliot's Debates 3:411, 413, in The Founders' Constitution, vol. 5, Amendment III, Doc. 8, https://press-pubs.uchicago.edu/founders/documents/amendIIIs8.html.
19. Madison's proposals, House of Representatives, June 8, 1789, Annals of Congress, reprinted in The Founders' Constitution, vol. 5, Bill of Rights, Doc. 11, https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss11.html. The committee wording appears in the August 17 entry at note 20.
20. House of Representatives, Amendments to the Constitution, Aug. 17, 1789, Annals of Congress 1:752, in The Founders' Constitution, vol. 5, Amendment III, Doc. 9, https://press-pubs.uchicago.edu/founders/documents/amendIIIs9.html. This lesson could not confirm from the reprinted passage how the House disposed of Mr. Gerry's motion; the Senate's treatment of the clause was not examined.
21. Constitution Annotated, Amdt3.3, Government Intrusion and Third Amendment, https://www.law.cornell.edu/constitution-conan/amendment-3/government-intrusion-and-third-amendment. Source for Story's Commentaries § 1893 (1833), Justice Miller's 1891 lectures, the 1822 compensation act (6 Stat. 264), the War of 1812 and Civil War quartering, and the statement that only two lower federal courts have examined the amendment in depth.
22. St. George Tucker, Blackstone's Commentaries 1:App. 300-301 (1803), in The Founders' Constitution, vol. 5, Amendment III, Doc. 10, https://press-pubs.uchicago.edu/founders/documents/amendIIIs10.html.
23. Griswold v. Connecticut, 381 U.S. 479, 484 (1965), https://www.law.cornell.edu/supremecourt/text/381/479.
24. Katz v. United States, 389 U.S. 347, 350 n.5 (1967), https://www.law.cornell.edu/supremecourt/text/389/347.
25. Laird v. Tatum, 408 U.S. 1, 15 (1972), https://www.law.cornell.edu/supremecourt/text/408/1.
26. 18 U.S.C. § 1385, https://www.law.cornell.edu/uscode/text/18/1385. This lesson searched for 2025 and 2026 Third Amendment rulings and could not confirm one.
27. Engblom v. Carey, 522 F. Supp. 57, 65 (S.D.N.Y. 1981), as quoted in the Constitution Annotated, note 21 above. The Annotated prints the volume as 552 in one footnote and 522 in another; this lesson uses 522, the form in its first citation. The Second Circuit's discussion of Justice Harlan's Griswold concurrence is at 677 F.2d at 961, note 14 above.
28. McDonald v. City of Chicago, 561 U.S. 742 (2010), https://www.law.cornell.edu/supremecourt/text/08-1521. The two phrases quoted are from the Court's syllabus of the holding on incorporation.
29. Engblom v. Carey, 724 F.2d 28 (2d Cir. 1983) (decided Dec. 20, 1983), https://law.resource.org/pub/us/case/reporter/F2/724/724.F2d.28.83-7707.534.html.
30. Custer County Action Ass'n v. Garvey, 256 F.3d 1024 (10th Cir. 2001), https://law.resource.org/pub/us/case/reporter/F3/256/256.F3d.1024.99-9543.html.
31. Silva, "No Quarter; Just Flapjacks," note 15 above; Brennan Center for Justice, interview with Eric Niehoff, https://www.brennancenter.org/our-work/analysis-opinion/what-third-amendment-and-will-supreme-court-ever-examine-it-again (plaintiffs claimed police forced them out of their home to occupy it; court held police are not soldiers and occupying for less than 24 hours is not quartering).
32. Constitution Annotated, Amdt3.1, Overview of Third Amendment, Quartering Soldiers, https://www.law.cornell.edu/constitution-conan/amendment-3/overview-of-third-amendment-quartering-soldiers.
33. Brennan Center for Justice, Andrew Cohen interview with Leonard Niehoff (Aug. 31, 2022), note 31 above (discussing Bruen and historical analogy).
34. Idaho Constitution art. I, § 12, Idaho Legislature, https://legislature.idaho.gov/statutesrules/idconst/ArtI/Sect12/.
35. Idaho Constitution art. IV, § 4, https://legislature.idaho.gov/statutesrules/idconst/ArtIV/Sect4/; art. XIV, § 1, https://legislature.idaho.gov/statutesrules/idconst/ArtXIV/Sect1/.
36. Idaho Code § 46-1008, https://legislature.idaho.gov/statutesrules/idstat/Title46/T46CH10/SECT46-1008/; Idaho Code § 46-1012, https://legislature.idaho.gov/statutesrules/idstat/Title46/T46CH10/SECT46-1012/.