The Last Time the Third Amendment was Invoked

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.

Custer County Action Ass’n v. Garvey, 256 F. 3d 1024 (10th Cir. 2001). The property Petitioners sought to protect was the airspace above their land. As the court extrapolated through a slippery slope argument, Petitioners would have the United States military seek consent from every individual or entity owning property over which military planes might fly, and then design its training exercises to utilize only that airspace for which permission was granted, or else risk Third Amendment liability. The 10th Circuit court was unwilling to extend this kind of Third Amendment protection:

Judicial interpretation of the Third Amendment is nearly nonexistent. The crux of any such claim, however, is whether the nature of the asserted property interest falls “within the ambit of the Third Amendment’s proscription against quartering troops ‘in any house, without the consent of the Owner.'” Engblom v. Carey, 677 F.2d 957, 961-62 (2d Cir.1982). Citing Engblom v. Carey, Petitioners argue that “[b]ecause a private party has rights to the airspace above his or her property … the United States military may not appropriate such property interests during peacetime without the property owners’ consent.” This argument borders on frivolous.

Engblom v. Carey, 677 F.2d 957 (2d. Cir. 1982), is the only significant challenge based on the Third Amendment since the Constitution was ratified in 1788. During a strike by New York prison guards, National Guardsmen were brought in as scabs to serve in their stead. Striking prison guards were removed from employee housing to make room for the National Guardsmen. Some of those evicted prison guards filed suit alleging violation of the Third Amendment. Ultimately, the majority held for the government — no Third Amendment violation. Though, the court did provide a test for all future Third Amendment violations.

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