Third Amendment Does Not Apply To Airspace Over Property

2001

In unrelated decisions, two federal courts rule that the Third Amendment will not prevent the government from using the airspace over private homeowners’ property without permission. In Custer County Action Association v. Garvey, the U.S. Court of Appeals for the Tenth Circuit rejects a claim by homeowners that the Air National Guard’s flying planes through airspace above the homeowners’ property during peacetime could be considered an unconstitutional “quartering” of soldiers. The Court rules that, unlike an individual’s right to expect privacy from government intrusion into his or her own home, it is not reasonable to expect the airspace above one’s home to be free from flights by government planes. A federal district court in Texas reaches the same conclusion in Welch v. United States Air Force, involving bombing training flights conducted by the Air Force over private homeowners’ property.