UNBIASED Politics – Unbiased University: Everything You Need to Know About the First, Second, and Third Amendments
Host: Jordan Berman
Release Date: February 26, 2026

Episode Overview

This episode of UNBIASED Politics marks the second installment of the “Unbiased University” education series, designed as a condensed law school class for listeners seeking to understand foundational American legal concepts. Host Jordan Berman, a lawyer, breaks down the First, Second, and Third Amendments to the U.S. Constitution. Heavy emphasis is placed on the First and Second Amendments, exploring their texts, origins, ongoing debates, and landmark Supreme Court cases that shape their modern meaning.

Berman’s guiding principle: deliver clear, factual, and spin-free summaries of complex legal concepts. Noteworthy are Berman's insistence on public understanding of what rights actually exist—and whom they apply to—plus her approachable, classroom-like explanations.

Key Discussion Points and Insights

1. Historical Context of the Bill of Rights

Timestamp: 05:29–08:25

• The Bill of Rights, or the first 10 Constitutional amendments, stemmed from the framers’ determination to prevent excessive government power following the American Revolution.
• The Massachusetts Compromise ensured that personal freedoms would be protected by post-ratification amendments.
• The amendments are intentionally broad, with much of their substance coming from subsequent judicial interpretation.

Quote:
“…the first ten amendments are really about setting boundaries on what the government can control, where it can go, how far its power can bleed into people's lives and, and what rights the people have themselves.” (07:27 – 07:53)

2. The First Amendment: Five Core Freedoms

Timestamp: 08:30–17:32

Text & Framers’ Intent

• Full text read aloud [11:26]: Protects five essential freedoms: Religion, Speech, Press, Assembly, and Petition.
• These collectively defend the “marketplace of ideas” critical for democracy.
• The original intent was rooted in contrasting American freedoms against the restrictions suffered in Britain.

Quote:
“The First Amendment is based on the idea that the government should not be deciding which ideas are allowed and which ideas are not allowed.” (09:45–09:56)

Application: Who is Bound?

• The First Amendment binds only the government—not private employers, companies, or individuals.
• Examples: Bank of America can fire an employee for critical speech; Instagram can moderate content.
• Public bodies (schools, universities, state and local governments) are generally limited by the First Amendment.

Quote:
“I’ll say that again because I want to be really clear about this. The First Amendment only binds the government. It does not apply to private organizations or private individuals.” (13:28 – 13:45)  

Unprotected Speech: Exceptions

• Incitement to imminent lawless action; true threats; fighting words; obscenity (very narrowly defined); and defamation are not protected.
• Obscenity must meet three tests: focus on sexual arousal, offense to community standards, and lacking all significant value.

Quote:
“For something to count as obscenity under the First Amendment, it has to meet a three part test…” (15:52 – 16:16)

3. The First Amendment in Supreme Court Case Law

Timestamp: 17:32–36:55

Barron v. Baltimore (1822) [18:00 – 20:29]

• Established the Bill of Rights originally limited only the federal government, not states.
• After adoption of the 14th Amendment, fundamental rights (including First Amendment ones) were applied to states.  

Schenck v. United States (1919) [20:30 – 22:55]

• Origin of the "clear and present danger" test.
• Famous quote:
  “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” (21:55)  

West Virginia v. Barnette (1943) [22:56 – 24:14]

• Schools cannot force students to salute the flag or recite the Pledge of Allegiance.
• “Even national symbols like the flag do not override constitutional rights.”  

Tinker v. Des Moines (1969) [24:15 – 26:50]

• Students retain free speech rights at school.
• “Students do not shed their constitutional rights at the schoolhouse gate.” (25:51)

Brandenburg v. Ohio (1969) [26:51 – 28:02]

• Refined limits: “imminent lawless action” test.
• Speech must incite immediate illegal action to be unprotected.

New York Times v. Sullivan (1964) [28:03 – 29:23]

• Public figures suing for defamation must prove “actual malice”.

Texas v. Johnson (1989) [29:24 – 30:30]

• Flag burning is protected expression, regardless of societal offense.
• Quote:
  “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” (30:14)  

Packingham v. North Carolina (2017) [30:31 – 32:11]

• Supreme Court protected free speech rights on social media as the “modern public square.”
• “...social media platforms function as the modern public square.” (31:49)  

Summary Takeaways [32:11 – 33:43]

1. First Amendment protects five core rights.
2. Certain exceptions exist for dangerous or damaging speech.
3. It limits only government actions, not the private sector.
4. Its meaning is continually shaped by the Supreme Court and social developments.

4. The Second Amendment: Text, Debates, and Modern Meaning

Timestamp: 33:44–53:45

Text

• “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” (34:16)
• Debate for centuries: individual versus collective (militia-based) right.

Historical Rationale

• Framers resisted standing armies; saw militias as essential to preserve liberty.
• Under early American laws, militias comprised ordinary citizens.  

Notable Cases

• United States v. Cruikshank (1876):

  • Bill of Rights limits government only, not private actors.

• United States v. Miller (1939):

  • Court tied Second Amendment protections to “militia use.”
  • Lawful possession dependent upon weapon’s relevance to militia service.

Analysis:

• For 60 years after Miller, courts permitted gun regulation, focusing on “militia use.”
• Both gun control and gun rights advocates rely on Miller’s language to argue opposing points.

Landmark: District of Columbia v. Heller (2008) [38:17 – 44:18]

• D.C.’s strict gun law challenged by Dick Heller.
• Supreme Court recognized an individual right to keep and bear arms for self-defense.
• The militia clause is “prefatory”—it explains the amendment’s purpose but does not narrow the operative right.
• Government can regulate but not outright ban entire classes of common firearms.
• Not all limits are struck: prohibitions on felons, mentally ill, guns in sensitive places, and certain regulations remain “presumptively lawful.”  

McDonald v. City of Chicago (2010) [44:19 – 45:50]

• Extended Heller’s rule to state and local governments, not just the federal government, through the 14th Amendment.

New York State Rifle & Pistol Ass’n v. Bruen (2022) [45:51 – 48:30]

• Struck down New York's “proper cause” requirement for concealed carry.
• Established a new test: judges must look at the history and tradition of firearm regulation, not just balance public safety versus individual rights.
• Modern laws must be historically rooted to stand.

United States v. Rahimi (2024) [48:31 – 50:46]

• Upheld law disarming domestic abusers under restraining orders.
• Historical analogy doesn’t require “perfect match”; historical tradition supporting disarming dangerous individuals suffices.

Three Takeaways (Second Amendment):

1. Individual right to keep and bear arms affirmed.
2. The right is not unlimited; government can regulate for dangerous people, sensitive locations, etc.
3. Courts assess new laws against historical firearm regulation traditions.

Forthcoming Case (2026):

• Supreme Court to hear challenge on law prohibiting gun possession by drug users.
• Will again hinge on “historical tradition” test.

Quote:
“Even the framers themselves accepted some form of regulation. Owning a gun was never seen as this completely unlimited right.” (52:11 – 52:23)

5. The Third Amendment: Brief Summary

Timestamp: 53:46–56:41

• Text: “No soldier shall, in the 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.” (54:04)
• Historical relevance: Colonists were forced to house British soldiers; the amendment secured privacy and property rights.
• Modern application: Virtually none; rarely litigated.

Quote:
“Under the Third Amendment, no soldier can be housed in any private home unless the homeowner gives their consent, or during a war, if Congress passes a law that allows it.” (54:29)

Notable Quotes & Memorable Moments

• On fundamental misunderstandings:
  “Too many people don’t know this…The First Amendment only binds the government.” (13:28)

• On the evolution of constitutional rights:
  “The amendments themselves are pretty vague. It’s the cases that have shaped those amendments over the course of the last 250 years that really tell us what these amendments stand for.” (06:55)

• On how the Supreme Court balances Second Amendment rights:
  “… Heller actually expanded the Second Amendment while also preserving the government’s ability to regulate, which creates this interesting balance that of course, only set up more Supreme Court disputes.” (43:44)

Timestamps for Key Segments

• 05:29 – Bill of Rights historical context and the Massachusetts Compromise
• 08:30 – Five freedoms of the First Amendment explained
• 13:28 – Important clarification: who is bound by the First Amendment
• 15:52 – Obscenity exception explained
• 17:32 – Start of First Amendment Supreme Court cases
• 38:17 – DC v. Heller and the modern Second Amendment
• 44:19 – Extension of Second Amendment rights to states (McDonald v. Chicago)
• 45:51 – New “history and tradition” test (Bruen)
• 48:31 – Rahimi and regulation of dangerous individuals
• 53:46 – What the Third Amendment says and why it mattered then (but not much now)

Final Takeaways

• The First Amendment secures five interrelated freedoms and is shaped constantly by Supreme Court decisions. It limits government only—not private actors.
• The Second Amendment guarantees an individual right to own firearms, but that right is regulated and understood through the lens of historical precedent.
• The Third Amendment—once vital for colonial liberty—is rarely of modern relevance.
• Supreme Court interpretation is key: “The amendments themselves are pretty vague. It’s the cases that have shaped those amendments…that really tell us what these amendments stand for.” (06:55)
• The host presents complex issues in precise but accessible language, maintaining a strictly impartial, fact-based tone throughout.

Next in the Series

• The upcoming episode will cover the 4th, 5th, and 6th Amendments, continuing the condensed law school journey into the Bill of Rights.