In light of his denial of the claim that the police qualified as soldiers, Gordon didn't answer the second relevant question, simply writing that he "suspect[s]" that the time spent by the police occupying Mitchell's home would not qualify as quartering.
While Gordon may have been correct in this ruling, his language is so broad that it may actually set a dangerous precedent. As Ilya Somin explained in the Washington Post: "The reasoning is very plausible and quite possibly correct. But it may too readily conclude that 'municipal police' can never be considered soldiers for purposes of the Amendment."
Somin is correct.
First, some background and context.
The Third Amendment reads: "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."
The tale told by Anthony Mitchell of how he and his family were robbed of these rights is compelling and cautionary.
Mitchell was sitting at home in Henderson, Nevada, on the morning of July 10, 2011, when the phone rang. Officer Christopher Worley of the Henderson Police Department was calling Mitchell to tell him that the police were going to take over his house. In order to gain “tactical advantage” over Mitchell’s next door neighbor, Officer Worley reportedly explained, police were going to set up shop in Mitchell’s house.
Mitchell was not asked if he would mind such a surrender of his home. The officer was informing Mitchell that they would be commandeering his house. In his legal complaint against the Henderson Police Department, Mitchell claims that he didn’t want to get involved with the police department’s operation against his neighbor and accordingly refused to let police occupy his home.
Not surprisingly, Mitchell’s refusal didn’t sit well with law enforcement. Again, according to Mitchell’s complaint, Officer David Cawthorn of the Henderson Police Department, one of the members of the force who were named as defendants in Mitchell’s lawsuit, “outlined the defendants' plan in his official report: 'It was determined to move to 367 Evening Side and attempt to contact Mitchell. If Mitchell answered the door he would be asked to leave. If he refused to leave he would be arrested for Obstructing a Police Officer. If Mitchell refused to answer the door, force entry would be made and Mitchell would be arrested.'”
It isn’t hard in the these times of police militarization to predict what happened next.
Just before noon, five (or more) officers of the Henderson Police Department “arrayed themselves in front of plaintiff Anthony Mitchell's house and prepared to execute their plan,” according to the narrative laid out in Mitchell’s lawsuit.
After showing up at Mitchell’s door, the officers allegedly “banged forcefully” on his door and demanded that Mitchell and his family open up.
Seconds later, Mitchell claims, “officers ... smashed open his front door using a metal ram.”
Standing in his living room in shock, Mitchell says that the officers “aimed their weapons” at him and ordered him “to lie down on the floor.” Fearing for his life, Mitchell complied.
Mitchell says that while he was prostrate on his front room floor, Henderson Police Department officers shouted “conflicting orders” at him, some commanding him to “crawl” toward the officers, with others demanding that he stay put.
Mitchell’s complaint continues the account of this incredible afternoon:
As for the notion that the Third Amendment was added to the Constitution to protect from military intrusion, as defined by Judge Gordon, the spirit of that provision seems to look more to the protection of the home, rather than to the identity of the invader.
While there are few cases on point, one Georgetown law professor quoted in a Wall Street Journal story describes the Third Amendment as the “Rosetta Stone of the Bill of Rights. “[The] Third Amendment can reveal the structure of the Bill of Rights, and its objects,” Professor Nicholas Quinn Rosenkranz wrote as reported by the Wall Street Journal. A quote by Joseph Story from his Commentaries on the Constitution confirms Rosenkranz’s view. “This provision speaks for itself. Its plain object is to secure the perfect enjoyment of that great right of the common law, that a man's house shall be his own castle, privileged against all civil and military intrusion,” Story wrote.
As for the ruling's potentially dangerous distinction between soldiers and police, thanks to billions in federal grants gobbled up by local law enforcement, that line is being blurred beyond recognition. In fact, in light of the overwhelmingly military equipment, training, weapons, and vehicles used by local police, these departments may be becoming exactly the type of force the Founders had in mind in 1791.
In commenting on Blackstone’s Commentaries, founding era jurist St. George Tucker speaks as if he foresaw our day and the fatal combination of an increasingly militarized police force and the disarmament of civilians: "Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."
The connection between this professional, civilian standing army and the attack on the right of the people to keep and bear arms has been recognized by contemporary liberty-minded scholars, as well.
In his essay “The Right to Keep and Bear Arms under the Second and Fourteenth Amendments: The Framers' Intent and Supreme Court Jurisprudence,” Stephen Halbrook writes: