In a remarkable speech at the National Defense University in May, President Barack Obama signaled an end to the war on terrorism; maybe not an end, it turns out, but a winding down of the costly deployments, the wholesale use of drone warfare, and even the very rhetoric of war. In a article for the Seton Hall Constitutional Law Journal, the legal scholar and civil liberties activist Roger Roots posed just that question. Roots, a fairly radical libertarian, believes that the U. The founders and their contemporaries would probably have seen even the earlyth-century police forces as a standing army, and a particularly odious one at that.
This wariness of standing armies was born of experience and a study of history—early American statesmen like Madison, Washington and Adams were well-versed in the history of such armies in Europe, especially in ancient Rome. The vast majority of these raids are to enforce laws against consensual crimes. Police departments across the country now sport armored personnel carriers designed for use on a battlefield.
Some have helicopters, tanks and Humvees. They carry military-grade weapons. Most of this equipment comes from the military itself. National Guard helicopters now routinely swoop through rural areas in search of pot plants and, when they find something, send gun-toting troops dressed for battle rappelling down to chop and confiscate the contraband. This sort of force was once reserved as the last option to defuse a dangerous situation. The Supreme Court has yet to hear a case that turns on the Third Amendment, and only one such case has reached a federal appeals court.
Given the apparent irrelevance of the amendment today, we might ask why the framers found it so important in the first place. At the time the Third Amendment was ratified, the images and memories of British troops in Boston and other cities were still fresh, and the clashes with colonists that drew the country into war still evoked strong emotions.
It represented a long-standing, deeply ingrained resistance to armies patrolling American streets and policing American communities. And, in that sense, the spirit of the Third Amendment is anything but anachronistic.
As with the castle doctrine, colonial America inherited its aversion to quartering from England. In the face of increasing complaints from the colonies about the soldiers stationed in their towns, Parliament responded with more provocation. The Quartering Act of required the colonists to house, feed and supply British soldiers albeit in public facilities.
Parliament also helpfully provided a funding mechanism with the hated Stamp Act. Protests erupted throughout the colonies, [and] some spilled over into violence, most notably the Boston Massacre in England only further angered the colonists by responding with even more restrictions on trade and imports.
England then sent troops to emphasize the point. Using general warrants, British soldiers were allowed to enter private homes, confiscate what they found, and often keep the bounty for themselves. They debated whether the abuses that British soldiers had visited upon colonial America were attributable to quartering alone or to the general aura of militarism that came with maintaining standing armies in peacetime—and whether restricting, prohibiting or providing checks on either practice would prevent the abuses they feared.
They believed that voluntary, civilian militias should handle issues of national security. To a degree, the federalists were sympathetic to this idea.
John Adams, Thomas Jefferson and James Madison had all written on the threat to liberty posed by a permanent army. But the federalists still believed that the federal government needed the power to raise an army.
In the end, the federalists won the argument. There would be a standing army. But protection from its potential threats would come in an amendment contained in the Bill of Rights that created an individual right against quartering in peacetime. Even during wartime, quartering would need to be approved by the legislature, the branch more answerable to the people than the executive. As a whole, the Constitution embodies the rough consensus at the time that there would be occasions when federal force might be necessary to carry out federal law and dispel violence or disorder that threatened the stability of the republic, but that such endeavors were to be undertaken cautiously, and only as a last resort.
More important, the often volatile debate between the federalists and the antifederalists shows that the Third Amendment itself represented much more than the sum of its words. The amendment was in some ways a compromise, but it reflects the broader sentiment—shared by both sides—about militarism in a free society. Ultimately, the founders decided that a standing army was a necessary evil, but that the role of soldiers would be only to dispel foreign threats, not to enforce laws against American citizens.
Daniel Shays was part of the Massachusetts militia during the Revolutionary War. He was wounded in action and received a decorative sword from the French general the Marquis de Lafayette in recognition of his service. After the war ended, Shays returned to his farm in Massachusetts.
He even sold the sword from Lafayette to help pay his debts. Other veterans were going through the same thing. Businesses too had taken on debt to support the war. They set about collecting those debts to avoid going under.
Shays and other veterans attempted to get relief from the state legislature in the form of debtor protection laws or the printing of more money, but the legislature balked. In the fall of , Shays assembled a group of veterans and supporters to march on Boston.
The movement subsequently succeeded in shutting down some courtrooms, and some began to fear that it threatened to erupt into a full-scale rebellion. In January , Massachusetts Gov. So Bowdoin instead assembled a small army of mercenaries paid for by the same creditors who were hounding men like Shays. After a series of skirmishes, the rebellion had been broken by the following summer.
But its success in temporarily shutting down courthouses in Boston convinced many political leaders in early America that a stronger federal government was needed. Inadvertently, Shays spurred momentum for what became the Constitutional Convention in Philadelphia.
Memories of the rebellion and fears that something like it could destabilize the new republic blunted memories of the abuses suffered at the hands of British troops and made many in the new government more comfortable with the use of federal force to put down domestic uprisings.
Two years later, in , President George Washington used the act to call up a militia to put down the Whiskey Rebellion in western Pennsylvania. So ideas about law and order were already evolving. The young republic had gone from a country of rebels lashing out at the British troops in their midst to a country with a government unafraid to use its troops to put down rebellions. But American presidents had still generally adhered to the symbolic Third Amendment. For the first 50 years or so after ratification of the Constitution, military troops were rarely, if ever, used for routine law enforcement.
But, over time, that would change. And four major wars during the 20th century kept militarization in its intended context—protecting Americans by fighting overseas. But as that war has unfolded over several decades, we seem not to have noticed its implications. Police claimed that eight days earlier they had received a tip from a confidential informant that Whitworth had a large supply of marijuana in his home.
The wounded dogs whimpered in agony. Upon learning that the police had killed one of his pets, Whitworth burst into tears. After battling with the police over its release, a local newspaper was finally able to get the video through state open records laws and posted it to the Internet. It quickly went viral, climbing to over 1 million YouTube views within a week. The video also made national headlines. In fact, the only thing unusual about the raid was that it was recorded.
Everything else—from the relatively little evidence to the lack of a corroborating investigation, the killing of the dog, the fact that the raid was for nothing more than pot, the police misfiring and their unawareness that a child was in the home—was fairly standard. The police raided the house they intended to raid, and they even found some pot.
The problem for them was that possession of small amounts of pot in Columbia had been decriminalized. Most Americans still believe we live in a free society and revere its core values. These principles are pretty well-known: How did we get here? How did we evolve from a country whose founding statesmen were adamant about the dangers of armed, standing government forces—a country that enshrined the Fourth Amendment in the Bill of Rights and revered and protected the age-old notion that the home is a place of privacy and sanctuary—to a country where it has become acceptable for armed government agents dressed in battle garb to storm private homes in the middle of the night—not to apprehend violent fugitives or thwart terrorist attacks, but to enforce laws against nonviolent, consensual activities?
How did a country pushed into a revolution by protest and political speech become one where protests are met with flash grenades, pepper spray and platoons of riot teams dressed like RoboCops? How did we go from a system in which laws were enforced by the citizens—often with noncoercive methods—to one in which order is preserved by armed government agents too often conditioned to see streets and neighborhoods as battlefields and the citizens they serve as the enemy?
Although there are plenty of anecdotes about bad cops, there are plenty of good cops. The fact is that we need cops, and there are limited situations in which we need SWAT teams.
If anything, bad cops are the product of bad policy. And policy is ultimately made by politicians. A bad system loaded with bad incentives will unfailingly produce bad cops.
There are consequences to having cops who are too angry and too eager to kick down doors, and who approach their jobs with entirely the wrong mindset. But we need to keep an eye toward identifying and changing the policies that allow such people to become cops in the first place—and that allow them to flourish in police work. As a child, Taylor had always been taught that police officers were the good guys.
She wanted to fight sexual assault, particularly predators who take advantage of children. To go into law enforcement—to become one of the good guys—seemed like the best way to accomplish that. She eventually started a sex crimes unit within the department. But it was a small department with a tight budget. What troubled her was that while the sex crimes unit had to find funding on its own, the SWAT team was always flush with cash.
There was always funding through asset forfeiture. Even the dealers, I found much of the time they were just people with little money, just trying to get by.
As the only woman in the department, she was asked to go along on drug raids in the event there were any children inside. Sometimes the kids too. They could never just arrest the guy on the street. They always had to kick down doors. The SWAT team would often avoid raiding a house if they knew there were children inside, but Taylor was troubled by how little effort they put into seeking out that sort of information.
Both were in the house at the time of the raid.