EDITORIAL: The castle under siege

Another amendment needs a bodyguard

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The First, Second and Fourth Amendments to the Constitution aren’t much admired by liberals, or “progressives,” or whatever they’re calling themselves this month. Free speech is restrained by speech codes, President Obama’s disdain for the right to bear arms is well known, and the government’s electronic snooping has shredded the guarantees against self-incrimination.

Now even the Third Amendment, which guarantees that “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,” is endangered, too. The courts have rarely considered this iron prohibition on quartering of troops, but now they must.

Two years ago, Christopher Worley, a police officer in Henderson, Nev., called on Anthony Mitchell to ask whether police could use the Mitchell home to keep watch on a neighbor. Mr. Mitchell declined. Soon he heard pounding on the front door. Henderson police officers arrived with orders from their superiors: “If Mitchell refused to answer the door, force entry would be made, and Mitchell would be arrested.” The door was battered down, and Mr. Mitchell was arrested at gunpoint for “obstructing an officer.” The frightened family dog was shot.

The Mitchell family sued, asking the U.S. District Court for Nevada to hold the cities of Henderson and North Las Vegas in violation of their constitutional rights when police seized their home and used it for a sting operation against a neighbor.

The cops are not soldiers, to be sure, but this is the bullying by the state that the Founders intended to prevent with the Third Amendment. Patrick Henry told the Virginia ratifying convention that the government’s power to install its forces in the people’s homes represents the power “to tyrannize, oppress and crush us.” In his 19th-century “Commentaries on the Constitution,” the legal scholar Joseph Story explained that the Third Amendment is about more than quartering federal troops. “A man’s house shall be his own castle,” he wrote, “privileged against all civil and military intrusion.”

Ilya Somin, professor of law at George Mason University, observes on an Internet blog that the Supreme Court has yet to rule on “incorporating” the Third Amendment, applying it to the states as well as to the federal government, as it has done with the rest of the Bill of Rights. This case could give the courts a chance to remedy the oversight.

Doing so would restore the diminishing respect for the principle that a man’s home is his castle. When the Boston Marathon was disrupted with bombs in April, the first response of officials of Watertown, Mass., was to lock down the streets and send SWAT teams into every house to conduct a “voluntary” search. Most of the cops were polite, and few residents complained, but several were pulled out of their homes at gunpoint, as video evidence has since shown.

Incorporating the loneliest of the amendments into the Constitution would curb such abuse, and send a needed message to law enforcement officers everywhere. A policeman’s lot is rarely a happy one, and selfless service deserves the gratitude of all. But when cops can’t resist playing soldier, they must be reminded that the Constitution applies to them, too.

The Washington Times

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