The rare opportunity arose in American Fork City v. Smith, decided by the Utah Court of Appeals on June 23. From the opinion, with emphasis added:
David M. Smith appeals from his conviction of electronic communication harassment, a class B misdemeanor. Smith asserts various constitutional issues to challenge his conviction. We affirm.
Smith first asserts that Utah Code section 76‐9‐201 is unconstitutional because it is overbroad and vague, and therefore violates the First Amendment of the United States Constitution. Although Smith argued to the jury that his vile speech directed at his ex‐wife was protected under the First Amendment, he did not raise a challenge to the constitutionality of the statute before the trial court. Generally, “claims not raised before the trial court may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. To preserve an issue, the issue must be raised before the trial court in a timely fashion, must be specifically raised, and must be supported by the party through evidence or legal authority. See O’Dea v. Olea, 2009 UT 46, ¶ 18, 217 P.3d 704. “[T]he preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that ‘exceptional circumstances’ exist or ‘plain error’ occurred.” Holgate, 2000 UT 74, ¶ 11. Smith has not asserted plain error or exceptional circumstances and did not seek a ruling on the constitutionality of the statute below. Accordingly, this claim is not properly before this court.
Likewise, Smith’s assertion that obtaining his phone records violated his rights under the Third Amendment is also not appropriately before this court. He asserts this issue for the first time on appeal; accordingly, we decline to address it. See id.
Rats. I hate it when procedural problems get in the way of a major constitutional ruling. Third Amendment scholarship certainly could use it. (In case you were wondering, the defendant proceeded pro se.)
Thanks to John Wesley Hall for the pointer.
matthew says:
Like so many other topics, the Onion had a relevant story on this a couple years back:
June 29, 2011, 12:59 amhttp://www.theonion.com/articles/third-amendment-rights-group-celebrates-another-su,2296/
David Schwartz says:
I wonder what his argument was. All the crazy in the world would seem insufficient to connect obtaining phone records with the third amendment. Did he just get the number wrong?
June 29, 2011, 1:18 amBelial says:
I helped my 5th grader study for her Revolutionary War history unit by explaining to her that the colonists found the Quartering Act intolerable because it required that the tax on tea be paid in quarters only, when the colonists wanted to use folding money which was easier to carry. This led directly to the Boston Tea Party. Fortunately, she was perceptive enough to realize that something sounded off about that and did not put it on the test.
June 29, 2011, 1:27 amgwinje says:
Belial,
You’re apparently too late, and your daughter’s apparently a little too quick, but if you have any more kids, you should try this.
June 29, 2011, 2:58 amcaptcrisis says:
Americans no longer have to put soldiers up in their homes.
Also, we no longer have “militia” composed of every able-bodied male.
TO an objective observer, history has rendered both the Second and Third Amendments as dead letters.
June 29, 2011, 6:15 amDavid Schwartz says:
captcris: While you may disagree with the second amendment’s included justification, the force of the rule doesn’t hinge on your agreement with its justification.
Suppose I say to my daughter, “Because I can’t trust you, you must be home each day before midnight.” That means she must be home before midnight. If she can convince me that I can trust her, then she may be able to get me to remove the rule. But until *I* do so, all the arguments that she is trustworthy do not revoke the rule’s force.
The second amendments opening words are of this type. They present the reasoning behind the creation of the rule. But the rule is in effect whether or not you agree with its reasoning and, in fact, whether or not its reasoning is true.
If you disagree with the rationale, your recourse is to attempt to get the rule changed on that basis by going back to the original authority that placed it. Such an explanation is not a delegation of authority to allow anyone else to decide when the explanation is not longer valid.
June 29, 2011, 7:39 amJoe says:
Americans no longer have to put soldiers up in their homes.
During a war or civil disturbance, it is very possible that at some point, a person’s home will be used in some fashion by the militia, police or military. The amendment is not obsolete.
Also, we no longer have “militia” composed of every able-bodied male.
“Able-bodied” would mean adults of a certain age and ability. And, we do have it. When necessary, the state can and at times has called up such individuals, now including women, for service. This puts aside a more expansive view of the 2A.
TO an objective observer, history has rendered both the Second and Third Amendments as dead letters
Don’t see this as true.
June 29, 2011, 8:29 amJoseph Slater says:
Rats, Matthew beat me to the Onion link I was going to post.
June 29, 2011, 8:48 amrbj says:
You may want to check with the US Code, 10 USC s311:
http://www.law.cornell.edu/uscode/10/311.html
Sadly, now I’m too old to be officially considered part of the unorganized militia.
June 29, 2011, 9:05 amSoronel Haetir says:
And once again I find argument forfeiture law to be far on the side of injustice, especially if there actually is an arguable constitutional issue. Like jurisdiction such issues should be able to be raised at any time and if accepted and instant game over for the case. I especially think it is nuts that certain issues must be objected to over and over in front of the same judge when you know that the judge isn’t going to accept the argument.
June 29, 2011, 9:09 amsamiamthelaw says:
The only way the Third Amendment shows up again is if we see military botnets running from civilian machines.
June 29, 2011, 9:10 amMartinned says:
And yet, I don’t see how the militia part of the 2nd doesn’t influence how we interpret the substantive rule. (Like which kinds of guns are particularly protected, which kinds of keeping and bearing, etc.) For this reason, I would suggest it is more intellectually honest to cover only a small part of what modern Americans do with guns under the 2nd, with the self-defence part being protected under the 9th instead.
June 29, 2011, 9:28 amFantasiaWHT says:
And the amendment doesn’t prohibit quartering in times of war, which never made sense to me.
June 29, 2011, 9:44 amMartinned says:
That never used to be much of a problem, until Bush declared perpetual war. So how are you enjoying your new house guests?
June 29, 2011, 10:39 amPorkchop says:
But it does address it — “nor in time of war, except in a manner to be prescribed by law.” Presumably, if it were necessary, Congress would enact a statute prescribing the manner of quartering. Otherwise, quartering of soldiers would be prohibited by the Third Amendment even in time of war.
Perhaps someone with more detailed historical knowledge could address British practices better than I, but I think that the object of the amendment was to avoid the arbitrary and capricious manner in which the British had required American households to house and feed soldiers prior to and during the revolution. Providing legal standards would at least assure some fairness in the process, for example, requiring compensation to the inconvenienced homeowner.
June 29, 2011, 11:08 amPorkchop says:
It depends on how you define “objective.”
But no need to go into that here — the difference between “subjective” and “objective” has been debated (and explained) at great length in comments on several recent posts. What I gathered from those debates is that “objective” and “subjective” mean whatever I objectively/subjectively want them to mean, unless some other person wants them to mean something else, in which case they mean what that person objectively/subjectively wants them to mean, except to me or the other person, because each of us is subjectively objective in our assessment of the other’s position, particularly if our political viewpoints differ, in which case the other person’s definition and understanding is objectively wrong. I think I now have that right — finally. Commenters on this site are awesome that way.
June 29, 2011, 11:22 amMatthew Carberry says:
In this regard parents of college-age military members are better off than parents of mere college students in that they have Constitutional support for not allowing them to move back home.
June 29, 2011, 11:29 amSeaDrive says:
Let’s suppose that National Guard members have two weeks of annual training at some particular location, and that for some reason, they don’t have adequate room to house the all the troops on some particular occasion. If the command ordered all the troops who actually lived within a 25 mile radius to sleep at home, and only come to the training base when on duty, would that violate the 3A?
June 29, 2011, 11:33 amFub says:
Nah, They just play possum from time to time.
June 29, 2011, 11:43 amMike Jesse says:
I know it was one of my biggest shocks when I came home on my first leave… It was OK though, because when I had to get a hotel room, I enacted the “Quartering of random 20-25 year old women back at my room Act” of 2003. A small in scope, but notable piece of personal legislation.
June 29, 2011, 11:44 amMy parents were less than thrilled at the outcome of exercising their constitutional rights. C’est la vie!
David Schwartz says:
Which other amendments would you advocate that approach with? “It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us.”
June 29, 2011, 11:47 amMartinned says:
Was that last part a quote, or did you just misplace some quote marks?
Anyway, I don’t see why certain constitutional provisions can’t cease to be relevant. That doesn’t mean they don’t continue to be legally binding. (I think I’ve speculated about desuetude on this blog in the past, but certainly with constitutional provisions that’s a bit of a stretch.) What good is the 13th amendment these days? Do you really think slavery would come back if it were abolished? No one sues under it anymore (at least not successfully), and the only purpose it seems to have is as a legal basis for the Mann Act ban on interstate prostitution, because God forbid you let the states legislate on prostitution all on their own. (And, either way, how is interstate human trafficing and prostitution not interstate commerce?)
My preferred reading of the 2nd amendment doesn’t go anywhere near as far. It would, however, maintain the Miller test of whether the weapon in question has a “reasonable relationship to the preservation or efficiency of a well regulated militia”, and in normal times it would tend to protect the right to keep arms more strictly than the right to bear them. Under the 9th amdendment right to self-defense, the situation may well be reversed. (The net effect being little difference from the current situation, of course.)
June 29, 2011, 12:07 pmHasdrubal says:
I wondered about that when I was reading Sherman’s memoirs, cause there was certainly quartering going on in civilian homes during the civil war. It wasn’t because the seceding states were considered a foreign nation, since 1) there was quartering going on in northern cities as well and 2) from the Union standpoint, they were still part of the US, that was sort of the whole point after all.
June 29, 2011, 12:15 pmMar says:
This act, in conjunction with the 21st amendment, probably makes for a pretty damn good time.
June 29, 2011, 12:52 pmLarryA says:
Because if we really took a hard look at what kinds of militia guns should be “particularly protected” we’d end up owning three-round-burst M-16s and M-5s as well as Beretta M-9 pistols with 15-round magazines. Then the anti-gun folks’ heads would explode.
June 29, 2011, 12:55 pmMartinned says:
I certainly think that that would be a tricky question. But I also think that it is a question that cannot be avoided. What the answer would be depends on one’s general philosophy towards constitutional interpretation, I suppose. Imho, the place to start would be to allow Congress to create a category of weapons that people are allowed to own (given X, Y, and Z safety measures), but not carry around. This is similar to what I know of the Swiss and Israeli models, where military rifle ownership is to some extent encouraged, but carrying them around is not.
For the originalists, there must be something from the founding era about people not being allowed to own and display working artillery pieces on their front lawns, thus proving that there is founding era pedigree for the idea that there is an upper limit to the size of the weapons that private individuals may keep and bear. For the common law and living constitution types, the answer is simpler still.
For all three, said militia is “well-regulated”, meaning that there is at least some power for the states to say what people may do with the weapons they have the right to keep and possibly bear. I don’t see how any of this necessarily leads to anyone’s head exploding.
June 29, 2011, 1:07 pmMatthew Carberry says:
At the time of ratification and after if you could afford it you could own it. Cannons were expensive but outside of not being allowed to shoot it in town or damaging others property you could do what you want. You could outfit a private ship that could take on a ship of war if you wanted.
Bearing of even militia grade arms would also fall under traditional usage of the time.
Again, for free.citizens the only restriction were on committing real crimes, not owning or carrying.
June 29, 2011, 1:15 pmMartinned says:
Isn’t originalism fun?
June 29, 2011, 1:44 pmMatthew Carberry says:
Well in the case of what was allowed vis a vis weapons in private life we can look at the extant laws, not just wonder what the “Founders were thinking”.
I just haven’t found any laws as you describe about ownership of cannons and the like; pretty much you couldn’t shoot in town, couldn’t necessarily own or bear arms if not free, maybe couldn’t conceal your arms (as open carry was the practice at the time for honest people) and couldn’t shoot in town or “go armed to the terror of the public” (as opposed to going armed not to the terror of the public).
June 29, 2011, 1:54 pmMatthew Carberry says:
What a patriot!
I myself went in for acting as a substitute father figure and means of support for orphans and such in their time of need.
Granted many were 20-something strippers with daddy issues, but still, I’m a giver, always giving, never taking.
June 29, 2011, 2:08 pmMartinned says:
Then I guess Scalia made the right call in weaseling out.
June 29, 2011, 2:34 pmRich Rostrom says:
“American Fork City”!
That would be a great band name – also a very intriguing business title (thinking of the ad for “Spatula City” in Weird Al Yankovic’s movie UHF).
June 29, 2011, 8:47 pmRicardo says:
Don’t know how it could. In wartime, Congress can suspend the writ of habeas corpus and the local military commander can threaten to have you arrested for refusing to quarter troops. Want to challenge the lawfulness of your arrest? You can’t until Congress restores habeas.
June 29, 2011, 9:59 pmTarquin the Meek says:
To annoy your Constitutional Law professor, offhandedly mention “constructive quartering”.
June 29, 2011, 10:59 pmPorkchop says:
Well, it would turn the mantra, “But we aren’t opposed to hunting”, on its head. As pointed out above, ownership of “hunting rifles” would not be protected, but ownership of “assault rifles” (define it as you will) would be. This is precisely the opposite of what the antigun movement has been preaching. It is in their interest to avoid the question.
When I was growing up, my neighbors displayed a working replica of a Civil-War-era cannon on their front lawn. It was a corner lot at the edge of town. On July 4, we would roll it to the back of the house and shoot it a couple of times out over the open fields. When not in use, it sat right at the corner of the lot — you could always tell when they had a disagreement with a neighbor by which direction the muzzle faced.
According to many, “well-regulated” did not mean quite what it means today — something more along the lines of suitably equipped.
But this thread is about the Third Amendment, so back to quartering.
June 30, 2011, 12:25 amMaureen says:
Hunting rifles potentially allow militia troops to live off the land, thus reducing the burden on the countryside. Assault rifles would of course be essentially military equipment. Having home supplies of stuff like grenades and knives would also be nice for your militia.
June 30, 2011, 6:16 amMartinned says:
[Just briefly:] Of course. I’ve never seen the constitutional relevance of hunting. Maureen’s argument notwithstanding, hunting is no more constitutionally protected than volleyball.
I could be mistaken, but the writ can only be suspended in the general vicinity of the war, when the courts are unavailable, etc. The 3rd, however, speaks generally of “time of war”, which doesn’t even have to be an insurrection or invasion. Right now is a time of war, according to your social betters.
June 30, 2011, 8:12 amJohn David Galt says:
I don’t get it. How does obtaining someone’s phone records amount to quartering troops in his home?
June 30, 2011, 12:43 pmPorkchop says:
I have never seen the relevance of hunting either, but every gun control proposal seems to be accompanied by assurances that it is not meant to deprive people of their hunting rifles.
In fact, I agree with you that, strictly construed, the Second Amendment only applies to weapons that are miltarily useful. The question in Miller was whether a sawed-off shotgun was militarily useful, but no one put on any evidence to show that it was.
One can take the view that most any firearm could be militarily useful in some circumstance — for example, if it is the only firearm you have. Leaving aside any debate on that, surely any firearm that the military has selected for use is ipso facto militarily useful, and therefore, the people’s right to keep and bear such arms may not be infringed. Even if limited to small arms, this would bring into question the constitutionality of the National Firearms Act and the ban on manufacture and importation of new fully automatic weapons for civilian use.
No gun control proponent would willingly tread that path.
June 30, 2011, 1:03 pmMartinned says:
Given how much I enjoy finally having (lawful) access to Westlaw again, I actually went and checked whether there were any other case documents available, but to no avail. So I guess we’re doomed to keep wondering forever.
June 30, 2011, 1:06 pmMatthew Carberry says:
“Militia weapons” would do just fine to hunt with. I believe industry numbers are showing the AR-15 pattern rifle (in more hunting appropriate calibers) is becoming the semi-auto of choice for hunting now due to its accuracy, adaptibility, reliability and familiarity to people who have served. Just like most of our bolt action hunting rifles came out of military development.
The only downside of hunting with even a 5.56 is the small caliber, but with proper ammo selection it can take most medium game in a pinch and the AR can even change caliber just by removing a couple pins. Nowadays most military rifles wear magnified optics so they don’t even have a sight disadvantage compared with modern hunting rifles.
I’m not saying you in particular don’t know better or are “anti-gun” but the Brady bunch made it a strategy to (knowingly) falsely claim that there are fundamental functional differences between semi-auto “military-looking” rifles and “civilian” rifles. That’s why they were quick to say they were only after “evil assault weapons” not “your Granddad’s deer rifle”… Though they would then talk about scary, super-accurate “deadly sniper rifles”, which are Granddad’s deer rifles..
Most of the public doesn’t (or didn’t) know much about firearms and doesn’t care enough about them to go looking for the facts to correct the anti-gunner’s blatant lies, which is how the assault weapon ban passed in the first place.
June 30, 2011, 2:41 pmNickM says:
Are you considering the Ninth Amendment here?
Nick
June 30, 2011, 3:09 pmFred says:
I too wonder about the quartering of troops during the Civil War and indeed during Reconstruction afterward. I would guess that there were some laws passed by Congress which would be effective during the time of hostilities but what about during the time of occupation afterwards?
July 3, 2011, 7:11 pmAn Almost Third Amendment Case | Odd Clauses Watch says:
[...] Over at the Volokh Conspiracy, Orin Kerr reports on how how a Utah court just missed “a chance to be a leader in Third Amendment jurisprudence.” [...]
July 5, 2011, 10:12 am