A redcoat solution to government surveillance - The 3rd Amendment

A California Democrat says:

'Use the 3rd Amendment to defeat the Police State.'

(ARS Technica)  -  The Third Amendment to the United States Constitution is just 32 words: "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."

Amongst very nerdy constitutional law circles, the Third Amendment is practically a joke. It’s never been the primary basis of a Supreme Court decision, and it only turns up rarely in legal cases. The reality is that the federal government isn’t going to be sending American soldiers to individual homes anytime soon. Even The Onion tackled the issue in 2007: "Third Amendment Rights Group Celebrates Another Successful Year."

But in a recent op-ed in the Los Angeles Times, one California state lawmaker, Assemblyman Mike Gatto, has proposed a novel legal theory that could allow this amendment to fuel a major legal challenge to the American surveillance state:

Let's examine whether a case may be made. The National Security Agency is part of the Department of Defense and therefore of our nation's military. By law, the NSA director must be a commissioned military officer, and per its mission statement, the NSA gathers information for military purposes. That's strong evidence that NSA personnel would qualify as soldiers under the 3rd Amendment.

And why did the framers prohibit the government lodging soldiers in private homes? Besides a general distaste for standing armies, quartering was costly for homeowners; it was also an annoyance that completely extinguished a family's sense of privacy and made them feel violated. Sound familiar?

As Gatto acknowledges, the Third Amendment has hardly been litigated in the history of the republic. And he figures that civil liberties groups like the Electronic Frontier Foundation and the American Civil Liberties Union have yet to strike a crippling blow to the government in their myriad of legal challenges under the First and Fourth Amendments. Plus, he realizes that a plaintiff and his or her creative lawyers would need to get around the thorny issue of standing, which has been a particular tough hurdle to overcome.

"I think they need to start taking other tools from the toolbox," Gatto told Ars. "It's definitely a long shot argument and is definitely one that has certain deficiencies, but what got me going on that line of reasoning is that when it has been cited in privacy cases it's been big landmark privacy cases—you get a sense that our Founding Fathers valued privacy. There’s a clear message that privacy is something."

As Gatto pointed out, one of the most recent citations for the Third Amendment in a Supreme Court decision (Griswold v. Connecticut) is from a big case. The Third Amendment is mentioned in one single sentence in this 1965 decision concerning the constitutionality of a Connecticut state law banning contraception, which the court overturned.

"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," the Supreme Court wrote in its 7-2 majority opinion.

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