When the Constitution’s Framers adopted the 3rd Amendment, prohibiting the peacetime quartering of soldiers, they had fresh on their minds the experience of the British occupation of Boston, the use of armed enforcers to conduct searches without traditionally restrictive warrants, and the overall spectacle of government officials heavily armed in a military capacity patrolling the streets to enforce the central state’s will. Thomas Jefferson condemned standing armies as “instruments so dangerous to the rights of the nation and which place them so totally at the mercy of their governors that those governors, whether legislative or executive, should be restrained from keeping such instruments on foot but in well-defined cases.”
The fear here was not so much that soldiers nominally associated with the military proper would patrol the streets, but that heavily armed officials with the best military equipment available would treat domestic affairs as though everywhere were a war zone. The colors of the uniforms and even jurisdiction were secondary to the material existence of ubiquitous armed agents with wide discretion in enforcing the government’s decrees.
Police as we know them today didn’t exist in colonial America. There were sometimes sheriffs with very limited administrative duties. Private law enforcement for day-to-day crimes was taken over from the private sphere in the nineteenth century and city police began to emerge in the major metropolises. The Progressive Era saw the creation and replication of modern city police departments throughout the nation.
Throughout American history, the distinction between law enforcement and military force was often blurred. Early on, the state militia carried out both kinds of functions. In the midst of abuse during Reconstruction, the Posse Comitatus Act sought to sharpen the distinction, but the modern era occasioned the carving of major exceptions into this law. By the late 20th century, the drug war allowed for major exemptions. The war on terror has further nationalized and militarized law enforcement.
So today the nation’s various police departments have taken on the role of standing armies, such that they run afoul of the spirit of the Third Amendment on a daily basis. The police don’t simply hold people “at the mercy of their governors,” as Jefferson warned standing armies do. They hold Americans at mercy at every traffic stop, and the fear of a tazing or a misunderstanding leading to a brutal confrontation has become palpable for everyday folks. The police carry out national, state, and city government priorities. In terms of their materiel, today’s police not only dramatically out-gun anything the 18th century redcoats could have dreamt of; the disparity between police and public far outstrips the disparity between redcoats and colonists.
We see just one more example of this: The Dallas Sheriffs have procured a fighting vehicle from the military. It is “ built to withstand ballistic arms fire, mine blasts, IEDs, and other emerging threats.” This is not out of the ordinary. Police departments throughout the nation, and even law enforcement for small towns, have heavily armed SWAT teams, aircraft, and tanks. Small towns with fewer than a hundred thousand get military equipment through the Defense Department and Homeland Security. SWAT raids happen 40,000 times a year, virtually always against non-violent offenders when there are much easier ways to serve warrants.
America’s most menacing police force resides in its biggest city, New York. The department has six submarine drones, satellite offices is eleven foreign cities from London to Tel Aviv, clandestine and dishonest surveillance activities leaking into other states, more officers than the FBI, and a record of known brutality and relentless civil liberties abuses. Bloomberg exaggerated when he boasted that his police department was the “seventh biggest army in the world,” but this claim revealed the mentality of a modern urban mayor, one with a far bigger population than the governors who worried Jefferson, one who likes to think of his police as an army. And in fact, that’s what they have become in the modern United States.
The U.S. army, in turn, has become the military police for much of the rest of the world. The fighting vehicles diverted directly from theaters of war to local police departments, often with fewer restrictions on proper use, are only the tip of the iceberg. There is perhaps no clear line differentiating a police state from a non-police state, but if that line has not been crossed due to some technical definition, it is almost undeniable that any line will be crossed before long.
Indeed, I fear that whatever short-term hope remained was dashed in the spring. In searching for one notorious murder suspect on April 19 of this year, the Boston police, cooperating with the federal government, wearing camouflage, forcing people out of their homes, shutting down business at the cost of hundreds of millions of dollars of economic activity, shut down the town of Boston. It was the very place where the redcoat occupation stoked fears that later inspired the Third Amendment. It was also a frightening sign of what is to come in the United States. Such drastic measures did not follow the domestic disturbances and terrorist acts of the couple decades before. A rubicon was crossed that day, and we continue to see the police all throughout the country aggrandized in their power, indemnified for their abuses, and armed with weapons designed for destroying the enemy. The public by and large accepted the Boston lockdown, which speaks precisely to the problem.
Many who love liberty have long looked at domestic police as sort of a third rail. Fans of limited government, assuming domestic law enforcement is one of the core legitimate functions of a defensible government, have ignored the way that governments have always exercised their “core” functions to monopolize further sectors of society, expand power, and stamp out civil society. They have also neglected, for the most part, the dramatic development of police agencies from problematic institutions that often inflict injustice, mostly directed against the most marginalized people in society, into full-blown military outfits that threaten the freedom of everyone.
If there is hope in advancing American liberty, a necessary part of the program will involve the radical reining it, at a minimum, of domestic law enforcement. I see modern government policing as inherently in tension with civil society, but for this country to escape the fate of dystopian totalitarianism and head on a trajectory toward liberty, we must see at a minimum the end of the drug war, the war on guns, the ties between police and the military and federal government, the war on terror, the doctrine of sovereign immunity, and the presumption that the police are always allowed to use lethal force to prevent people from “resisting arrest” or committing other derivative crimes. A move toward open immigration and radical correctional reform will also need to accompany and advancement of liberty. Unless the modern police occupation ends, liberty is at best a dream. Until a major cultural shift occurs and the people no longer tolerate well-armed standing armies with effective legal impunity to commit grievous crimes out of malice or negligence, the American Revolution is lost, the Third Amendment as empty a shell as anything else in the Bill of Rights.