UNBIASED - Unbiased University: Everything You Need to Know About the First, Second, and Third Amendments to the United States Constitution

Episode Date: February 26, 2026

UNBIASED University is officially in session! While Jordan is on maternity leave, she’s breaking down the most critical aspects of the United States government — the Constitution, the Bill of Rights, the three branches of the federal government, presidential elections, the evolution of political parties, and more. In this episode of UNBIASED Politics, we continue the UNBIASED University series by breaking down the First, Second, and Third Amendments to the U.S. Constitution. What protections do these amendments actually guarantee, and how have their meanings evolved over time? We explain the freedoms of speech, religion, the press, assembly, and petition, the right to keep and bear arms, and the historical context behind the rarely discussed Third Amendment’s protection against the forced quartering of soldiers. Along the way, we explore the historical origins of these rights, the major Supreme Court decisions that have shaped how they are interpreted today, and the ongoing legal and political debates surrounding them. Whether you’re looking to better understand your constitutional freedoms or simply want a clear, nonpartisan refresher on the Bill of Rights, this episode provides a straightforward guide to the first three amendments. SUBSCRIBE TO JORDAN'S ⁠FREE NEWSLETTER⁠. ⁠Watch⁠ this episode on YouTube. Follow Jordan on ⁠Instagram⁠ and ⁠TikTok⁠. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased Politics and to the Unbiased University education series. If you're listening to this, it means I am officially on maternity leave. But rather than leave you hanging for seven weeks, I created Unbiased Universities. So I want you to think of this series as a condensed law school education. I want you to imagine that every time you're tuning into one of these episodes, you are sitting down in a 45-minute law school class with me as your professor. And each class will cover a different topic. We'll talk about various cases and laws that have shaped those topics. And by the end of the

series, you will have obtained your imaginary degree from Unbiased University, which means that you'll be fully prepared for the show when I come back and get back to reporting on current events. Because all of these concepts that we're talking about in each of these episodes, whether it's the Constitution, the Bill of Rights, the branches of government, the Supreme Court, presidential elections, et cetera, they're all in the background of every single current event that we talk about. So it's really important that we all understand them on a deep level. Now, although I am on maternity leave, as a reminder, if you are still interested in getting an unbiased rundown of current events, I am still cranking out articles on substack when I can. So if you're interested in joining,

it is free. You just have to click the sub-zac hyperlink in the show notes of this episode and enter your email address. Okay, so the first episode in this series was all about the United States Constitution. If you haven't yet listened to that episode, I highly recommend listening to that episode first and then tuning into this episode. It's not an absolute necessity, but if you do listen to that episode first, you'll at least get a good foundation for this episode, because in today's episode, we're covering the first, second, and third amendments to the Constitution. There will be a heavy emphasis on the first and second amendments because the third amendment is kind of irrelevant these days.

We will be discussing a lot of case law throughout this episode because as you'll see, the amendments themselves are pretty vague. It is, 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. In the next episode, we'll cover the fourth, fifth, and sixth amendments. And then in the following episode, we'll finish up the Bill of Rights by covering the 7th, 8th, 9th, and 10th amendments. And then from there, we'll move on to some other important topics.

So without further ado, let's get into today's episode. Before we get into the nitty gritty of the first three amendments, though, it is important to make mention of the fact that when it came time to ratify the Constitution, multiple states were concerned that the Constitution did not adequately address personal freedoms. So the framers made these states a promise through what's called the Massachusetts compromise that once the Constitution was ratified, they would get to work on these amendments to guarantee personal freedoms. And that's exactly what they did. To really understand the amendments, it's important to understand one thing. The framers of the Constitution were really, really against

concentrated government power. They had just fought a war to escape it and they were not about to allow the United States government to usurp the same amount of power that the British government had. So the first 10 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 what rights the people have themselves. So now that we're on the same page with that, let's start with the First Amendment. most of us know that the First Amendment, you know, protects our right to speak freely, but the Amendment, the First Amendment actually protects five core freedoms, religion, speech, press, assembly, and petition. And when you take a look at these five core freedoms and you

kind of zoom out a little bit, you can tell that they all, they all sort of play into the same theme, which is protecting the marketplace of ideas that democracy depends on. In other words, 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. The framers felt that the best way to figure out what works, what's true, and what doesn't work is by letting people talk about things openly without any sort of fear of punishment from the government. So by allowing people to argue and disagree and publish information and protest and criticize the government, we would have this properly functioning democracy. Because keep in mind that when these guys left Britain and we are

finally, you know, we finally declared our independence, the last thing they wanted was to end up in another situation where they were subject to the king. And lucky for them, they were the ones making the rules for our country. So take freedom of speech as an example. Under British rule, they couldn't speak out against the king without being punished. In the United States, they wanted to make sure that people could freely criticize the government, then take freedom of religion. In Britain, they lived under a system where the Church of England was the official state religion, and any opposing religious beliefs were punished. So the framers made sure that here in the United States, you could freely practice whatever religion you wanted.

Then you have the freedom of the press. In Britain, the printing presses were licensed and monitored. So if you were a publication that criticized the king, you could be shut down. And not only that, but people who handed out pamphlets that contradicted the monarchy were arrested. Here in the United States, the framers made sure that the press could publish whatever they wanted, regardless of how the government felt about it. Then you have freedom of assembly. Again, in Britain, protests and public assemblies were pretty heavily restricted.

Here in the United States, you can protest so long as you do it peacefully. And then finally, the freedom to petition. Technically, under British rule, colonists, did have the right to complain to the government, but they rarely did so because most times it would either be ignored or it would be used against them. So by the time, you know, the American Revolution came around, a lot of the colonists felt they had exhausted every lawful way to address their grievances and they still weren't getting what they wanted. In fact, when the framers drafted the Declaration of Independence, they essentially wrote out one long petition filled with all of their complaints

about Britain and the king and explained why independence and separation were necessary. So when the framers wrote the First Amendment, they wanted to make it clear that asking the government to fix a problem should never be an issue or, you know, be treated as a crime. And that's exactly what the freedom of petition did. It guarantees that people can formally complain to the government. They can demand changes to laws or policy. They can even file formal complaints with the government without having to worry about punishment or retaliation. So those are the five core freedoms laid out in the First Amendment. And there's a reason why the framers drafted this amendment first. It is perhaps the most important amendment that exists and the one

that meant the most to the framers. Now, if we look at the exact text of the First Amendment, it says Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peacefully to assemble and to petition the government for a redress of grievances. End quote. So really what the First Amendment is doing is placing limits on Congress's lawmaking power. It is telling Congress it cannot write laws establishing a religion, restricting speech, restricting the press, restricting the right to peacefully assemble,

or restricting the right of the people to ask the government to make changes. Now, originally, the First Amendment only applied to the federal government. But over time, the Supreme Court said that these protections apply to the states as well. And we'll talk more about that when we get to the case law portion of this episode. But here's what I really, really, really want to make clear because too many people don't know this, and it's a fundamental piece of the First Amendment. The First Amendment does not bind everyone. The First Amendment only binds the government.

And 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. So private people, private businesses, most private institutions are not bound by the First Amendment. As an example, a private employer can discipline and employee for speech it disagrees with. If you work for, let's say, Bank of America and you make a video on social media about how much you hate your job, Bank of America can fire you. They are not bound by the First Amendment. Similarly, if you post a video to Instagram and Instagram

doesn't like it, Instagram can take it down, Instagram is not bound by the First Amendment. The First Amendment is designed to stop government censorship. It does not guarantee that everyone has a platform everywhere. Now, when I say the government, I'm not just talking about the federal government. I'm also referring to state governments, local governments, public schools, and public universities. Those entities generally can't punish you for your speech, though the rules are a little bit more specific in places like public schools and public workplaces. So when people say, you know, that violates my First Amendment rights, the key question is always, is the government the one restricting the speech.

If the answer is no, the First Amendment usually doesn't apply. So that is the most important thing to take away about the First Amendment. Now, I want to talk about some exceptions because the First Amendment does not apply to all speech, right? The First Amendment does not protect the following types of speech. Number one, incitement to imminent lawless action. If speech is intended to cause illegal action and it is likely to cause illegal action and it is likely to cause illegal action. And that action is meant to happen immediately. It is not protected speech. So if you tell a crowd to commit violence right now, not protected speech, you can be punished for that.

Number two, true threats. Speech that threatens violence against a specific person or a group, like threatening to kill someone, not protected. And the key question here is whether a reasonable person would feel threatened by the speech. Number three, fighting words. Speech direct. at someone face to face that is likely to provoke an immediate violent reaction, not protected. Number four, obscenity. When it comes to the First Amendment, obscenity has a very narrow definition. It does not include all speech that's explicit or makes people uncomfortable. Okay. For something to count as obscenity under the First Amendment, it has to meet a three-part test. First, the material has to be mainly about sex and meant to arouse sexual interest.

Second, it has to show sexual conduct in a way that is clearly offensive under community standards. And third, the material must not have any serious literary, artistic, political, or scientific value. And if even one of those elements is missing, the speech is protected by the First Amendment. And this is why most sexually explicit content is still protected. Things like movies, books, art, music, even pornography, usually don't qualify as obscenity. So it's a very specific type of content. Then the fifth and final exception is defamation. False statements that harms someone's reputation are not protected.

So under the First Amendment, you are generally protected in your right to speak freely. But if your speech constitutes any of those five things we just talked about, it is no longer protected speech under the First Amendment. And the reason we have those exceptions is because of the Supreme Court. the Supreme Court has helped shape the First Amendment and turn it into what it is today. As I mentioned at the beginning of this episode, when the First Amendment was first written, and this actually applies to all amendments, as you'll see as we go through them over the next few episodes, it was written very broadly. The framers did not spell out exactly how these rights would apply in every situation.

So over the last, you know, 235 years, the Supreme Court has helped shape how the amendment applies in practice by, interpreting its language and applying it to different circumstances. So what I want to do is talk about a handful of famous Supreme Court cases that deal with the First Amendment. And there are tons of cases we could talk about. But this is a condensed law school program. Okay. So we don't really have too much time. What we'll do is we'll talk about eight of the more popular cases since the 1800s. And we'll start with a case called Barron v. Baltimore. But first, we do need to get in a quick ad break. So let's do that now. and I will be right back. Welcome back.

Before the break, we were about to introduce some of the more popular First Amendment Supreme Court cases. And we're going to start with a case called Barron v. Baltimore. The year is 1822. A man by the name of John Barron owned a wharf in Baltimore. City improvement projects at the time ended up diverting some of the streams, and it caused sediment to build up in the harbor. And this made the water too shallow for bigger ships. and Barron's Wharf could not operate like it once could. So Barron goes ahead and sues the mayor and city council of Baltimore,

claiming that these city improvement projects constituted a taking of his property without compensation in violation of the Fifth Amendment. And we'll talk about the Fifth Amendment in the next episode. But the Supreme Court, in a unanimous opinion, ruled that the Bill of Rights, all 10 amendments in the Bill of Rights, did not apply to state or local governments only to the federal government. And the court's rationale was that the text of the Constitution never indicated that any of the first 10 amendments were meant to limit the states. They were only meant to limit the federal government. So Barron v. Baltimore established this principle that the Bill of Rights only restricted the federal

government, which meant that state and local governments were free to do whatever they wanted without regard to the Constitution and how this applies to the first amendment. is that through this case, state and local governments could restrict speech. They could restrict all the things that the First Amendment prohibited. It wasn't until after the Civil War when the 14th amendment was adopted and eventually allowed the Supreme Court to apply most Bill of Rights protections, including the First Amendment, to the states. So basically what happened there is that after the Civil War, Congress passed the 14th Amendment to address abuses by state governments, particularly in Confederate states. States were passing laws that were restricting speech and violating basic

civil liberties, especially for the newly freed black Americans. So what the 14th Amendment said is that states can't deprive people of life, liberty, or property without due process of law. And over time, the Supreme Court interpreted the word liberty to include a lot of the fundamental rights in the Bill of Rights, including the rights listed in the First Amendment. And from there, state and local governments were also bound by the First Amendment. Then, in 1919, the court decided a case called Shank. Shank came about because there were two socialists, Charles Shank and Elizabeth Bear, who were handing out leaflets during World War I that said the draft, the draft for the war,

violated the 13th Amendment. and the leaflets asked the public to disobey the draft, but also said only use peaceful actions in doing so. While Shank and Bear were ultimately arrested, they were charged, they were convicted with conspiracy to violate the Espionage Act. But they appealed their conviction on the grounds that the Espionage Act violated the First Amendment. And in a unanimous decision, the court held that the Espionage Act did not violate the First Amendment and was an appropriate exercise of Congress's war-trial. authority. Justice Holmes, in writing that opinion for the court, said that the courts owed the government greater deference during wartime, even when constitutional rights were at stake. And this is when Justice Holmes set forth the clear and present danger test.

He explained that speech can be restricted if it poses a clear and present danger. He actually wrote a very famous line in his opinion, which is, quote, the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic, end quote. And this was a really big case because it was it was the first case that defined limits on free speech. Then we have West Virginia State Board of Education versus Barnett in 1943. This case ruled that students couldn't be forced to salute the flag or recite the Pledge of Allegiance. So in that case, the West Virginia Board of Education required public schools to include salutes to the flag by teachers and students as a mandatory part of school activities.

And a family of Jehovah's Witnesses sued after their child was sent home from school for refusing to salute the flag. The court, in a six to three decision, held that the First Amendment does not allow the government to force everyone to share the same beliefs or expressions. And the court emphasized that even national symbols like the flag do not override constitutional rights. Okay. So that was also a big case. Then we have Tinker versus Des Moines. This is a case from 1969.

This was a big one. This is one that every law school student has ingrained in their brains. But in December 1965, a bunch of students in Des Moines, Iowa, planned this peaceful protest to show their support for a true. in the Vietnam War, and they decided they were all going to wear black armbands throughout the holiday season. I mean, they still wear them to school, but then they were going to go on winter break and they were still going to wear them. The principals of the school heard about this plan and wrote a policy that said any student wearing an armband would be asked to remove it, and any student that refused to remove it would be suspended. So some of the kids show up to school wearing these armbands and they get suspended. their parents sued. In a seven to two decision, the court held that number one, the armbands represented speech. And number two, the students didn't lose their right to free speech when they stepped onto school property. The court said that in order to justify the suppression of speech, a school has to be able to prove that the conduct in question would materially and substantially interfere with the operation of the school.

So in Tinker, the suspension stemmed from a fear of possible disruption rather than any actual interference. And that's still the rule today. So there's a famous phrase that goes, students do not shed their constitutional rights at the schoolhouse gate. And that came from Tinker. So again, the rule is that schools have to show more than a mere desire to avoid discomfort or an unpopular opinion. They have to show a reasonable forecast of serious, tangible, disruption. Now, there have been some refinements since Tinker. For instance, schools can prohibit, you know, vulgar or offensive speech, even when it's not substantially disruptive. Schools can also restrict speech that reasonably promotes illegal drug use. So there are

specific limitations that have been carved out since Tinker, but Tinker still does remain the general rule when it comes to free speech in schools. Then we have Bradenberg versus Ohio. So it was a 1969 case. And the Supreme Court refined that clear and present danger test that we talked about earlier. The court held that the government cannot punish inflammatory speech unless that speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. So this is the case that established that first exception to the First Amendment that we spoke about earlier in the episode. There are three distinct elements of this test. Someone has to have an intent to incite lawless action. The speech has to be likely to incite lawless action.

And the lawless action has to be imminent, meaning right now, not next week, not someday in the future, right now. If those three things exist, the government can punish the speech. So an example of this would be a protester standing up and saying to the crowd, all right, everybody, get ready. we're going to go break through these doors and attack the officers inside or something. In that situation, the protester is clearly trying to get the crowd to commit violence at that moment, and the crowd is likely to follow the order. It's lawless action, and that is not protected speech. So that is Brandenberg.

That carved out that imminent lawless action exception to the First Amendment. Next, we have New York Times v. Sullivan. This was a 1964 case that applied to the press. So the court unanimously held that if a publication, like the New York Times, publishes an inaccurate statement about a public figure, and that public figure sues the publication for defamation, it is not enough to just show that the statement is false. Instead, the public figure has to show that it was made with knowledge of or reckless disregard for the statement's falsity. And this is what we actual malice. So when it comes to defamation, public figures have a higher standard in winning a

case for defamation. They have to prove actual malice, which is that it's not just that the statement was false, but that whoever published that false statement, you know, had knowledge that the statement was false or they had some reckless disregard for the statement's falsity. Okay, then we have Texas versus Johnson. This was a 1989 case that said, Americans can in fact burn the American flag. It did actually say that, but there was a bigger concept here. And that was that the First Amendment protects unpopular speech. So this was a five to four decision.

It was obviously a close decision. But basically in 1984, a man burned an American flag in front of the Dallas City Hall to protest the Reagan administration. He was sentenced to a year in jail, but he appealed his conviction. and on appeal, the Supreme Court held that the burning of the flag is protected expression under the First Amendment. The court said the fact that an audience takes offense to certain ideas or expression, it doesn't justify prohibitions of speech. So famously, the court said, 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, end quote.

And then for the last case, we'll throw in a modern-day social media case. In 2017, the Supreme Court heard a case called Packingham v. North Carolina. The state of North Carolina passed a law that made it a crime for registered sex offenders to access certain websites, including social media platforms. And the state argued that the law was meant to protect children, but the state was challenged in court. And it makes its way to the Supreme Court. And the Supreme Court says that social media platforms are one of the most important places for free speech and public discussion in modern society.

And the government cannot just broadly ban people from accessing these social media sites no matter what they've been convicted of. Justice Kennedy famously wrote that social media platforms function as the modern public square. Now, this case doesn't mean social media platforms themselves can't take action because, Remember, social media companies are private companies not bound by the First Amendment. It just means the government can't broadly block people from accessing social media as a way of limiting speech. That goes against the First Amendment. So again, like I said, there are tons of cases that have shaped the First Amendment over time. But what I want you to take away from this episode in regard to the First Amendment is this.

There are four things. Number one, the First Amendment protects five core freedoms. religion, speech, press, assembly, and petition. Two, speech that constitutes imminent, or, yeah, imminent lawless action, true threats, fighting words, obscenity, or defamation, not protected and can be punished. Number three, the First Amendment only applies to the government. It does not apply to private individuals, private organizations, or private companies. And number four, the First Amendment is constantly available.

evolving and being shaped by the Supreme Court, especially with the advent of social media. With that, let's move on to the Second Amendment. The Second Amendment is one of the most debated provisions in the Constitution, not even one of the most debated amendments, okay? It is one of the most debated sentences in the whole Constitution, and it is one sentence. So here's the exact text, quote, 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, end quote. I'm actually going to repeat it. Okay, so 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. Now, a lot of people shorten it and just say the right to keep in bare arms shall not be infringed. but the first two phrases of that sentence are at the very center of the debate. So first it says a well-regulated militia being necessary to the security of a free state. But then it calls out the right of the people to keep him bear arms. So what did the framers mean? And that's exactly what we've been trying to figure out for the last 235 years. So let's start with a little bit of historical context first. Under British rule, Permanent Trued were stationed in the colonies, right? And those troops enforced the law. They suppressed protests.

They intimidated and sometimes arrested civilians. The framers didn't like this. To the framers, a stationed army that was loyal to a central government represented one of the greatest threats to personal freedom. So in the United States, the militia was made up of everyday people, just citizens, okay? The framers didn't want a big permanent federal army at the time. They had no interest in that. So militias were almost seen as a way for the colonies or the communities within the colonies to defend themselves without relying entirely on this powerful national army. So when the framers wrote 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. The well-regulated militia they were referring to

were the local groups of ordinary citizens that could get called up by their communities or colonies for defense. But still the question remained. Did the amendment protect an individual right, or did it instead protect a collective militia-based right? There is a gray area there for sure. And for much of American history, the Supreme Court actually didn't clearly define what the Second Amendment allowed. But over time, the amendment slowly started to develop. So we'll walk through some of the most notable cases. In 1876, the Supreme Court heard a case, called Cru Shank. This case was the result of the Colfax massacre in Louisiana. More than 100 black men were killed by a mob of white men after the Civil War, and federal prosecutors ended up charging the

mob members under federal law. Prosecutors argued that they, that the mob members had violated the victim's constitutional rights, specifically the First and Second Amendments. But the Supreme Court said, no, no, no, no, no. The First and Second Amendment only restrict the government. private citizens like the mob, they're not bound by the amendments. And the importance of that ruling is that it essentially restricted the government from enforcing the Second Amendment. So we didn't get any active enforcement of the Second Amendment for decades. And that means we have to fast forward about 63 years to 1939 when the Supreme Court decided the next landmark case related to the Second Amendment. And it was a case called Miller. So two men, Jack Miller, and Frank Layton were charged with violating the National Firearms Act because they brought an unregistered sawed-off double-barrel 12-gauge shotgun from Oklahoma to Arkansas, so across state lines. And Miller and Layton argued that the National Firearms Act violated their Second Amendment right to keep and bear arms. But the Supreme Court held that the Second Amendment did not protect

possession of that specific type of weapon. The court found that there was no evidence showing that that specific weapon had a reasonable relationship to the preservation or efficiency of a well-regulated militia. And because of that, the court held the Second Amendment did not protect possession in this case. So this was a big case in the sense that the Supreme Court specifically tied Second Amendment protection to militia use rather than an individual right. But at the same time, the court never explicitly rejected the idea of an individual right. It never addressed the issue at all. So that ambiguity caused a lot of debate for years, especially because the Supreme Court didn't revisit the Second Amendment again until 2008. But before we get to that 2008 case,

I want to talk about the debate that stemmed from Miller because people still rely on Miller today when debating the Second Amendment. Basically, for the roughly 60 years following Miller, most federal courts relied on Miller to uphold gun regulations because they read Miller as saying, number one, the Second Amendment protects weapons connected to militia service. And number two, if a weapon doesn't clearly fit that category, the government can regulate it. So gun control advocates see Miller as supporting government regulation. But gun rights advocates see it differently. They argue that under Miller, weapons useful for the efficiency or preservation of a militia are

protected. And from that perspective, if a weapon is commonly used in war, or military service, it should be protected. And they also point to the fact that short-barreled shotguns were in fact used by U.S. troops when the Supreme Court heard Miller, especially during World War I. But because the defense did not appear before the Supreme Court in Miller, the Supreme Court never got that history. So gun rights advocates argue that the court didn't reject gun rights. It just made its ruling based on an incomplete set of facts. facts. All this to say, Miller was a widely debated case. And like I said, it wasn't until 2008 that the Supreme Court revisited the Second Amendment. So let's take our second and final break here. When we come back, we'll talk about what the court held in 2008 and in the years since then. Welcome back. Okay, so before the break, we talked about Miller, the case that actually caused more Second Amendment debate than existed, you know, than what existed before Miller. But in 2008, the Supreme Court heard a case called District of Columbia versus Heller.

And at the center of this case was a local D.C. law that made it illegal to carry an unregistered firearm and prohibited the registration of handguns. However, under the law, the chief of police could issue one-year licenses for handguns. And importantly, the law also said that if someone had a legally registered firearm, the gun had to be kept unloaded and either taken apart or locked with a charge. trigger lock. So basically, inside the home, a legally owned firearm could not be kept ready for immediate use. Dick Heller was a D.C. special police officer who was authorized to carry a handgun while on duty, but he wanted a gun to keep it as house as well. So he applied for this one-year license from the chief of police that he could keep at home, and his application was denied. Heller sued D.C. And he argued that portions of that law violated his Second Amendment right.

to keep a functional firearm in his home without a license. So the question for the court was whether these portions of the D.C. law that restrict the licensing of handguns and require licensed firearms kept in the home to be, you know, kept nonfunctional, whether these things violate the Second Amendment. And in a close five to four decision, the court held that these provisions of the law did violate the Second Amendment. The court held that the first clause of the Second Amendment that references a Maloney, militia is a profanatory clause that does not limit the operative clause of the amendment.

So in other words, the opening phrase of the Second Amendment that mentions militia explains why the amendment exists, but it doesn't limit who the right belongs to. The court also said that the word militia should not be limited to those serving in the military because at the time the amendment was drafted, the term militia referred to all able-bodied men who are eligible for service. And if we read the amendment, this is still the court speaking, if we read the amendment as limiting the right to bear arms only to those in a governed military force, it would create exactly the type of state-sponsored force against which the amendment was meant to protect people from. So the court in Heller said the second amendment should be

understood the way people would have understood it when it was written. And when you read it that way, the key part of the amendment protects an individual person's right to own and carry weapons for self-defense. And because of that, the court said the government cannot ban an entire category of commonly used firearms like handguns or require guns to be kept unusable inside the home because the home is where people most often need protection. And laws that make self-defense in the home impossible violate the Second Amendment. So Heller, big, big, big case. Now, the court also made clear in Heller that this right is not unlimited. And the court went out of its way to make this clear. So even though Heller recognized this individual right to keep a firearm for self-defense,

the court also said that not all weapons are protected and some regulations are presumptively lawful. As examples, the court said laws banning gun possession by felons, laws banning gun possession by the mentally ill, laws restricting guns in sensitive places like schools and government buildings, laws regulating the commercial sale of firearms, all of these are presumptively lawful bans. In other words, there is a presumption that these kinds of laws are permissible, are constitutional, but there is also a possibility someone could prove otherwise. And one other thing the court was really clear about in Heller is the fact that the Second Amendment protects certain kinds of weapons, those being weapons that are in common use and used for

lawful purposes like self-defense. So Heller was a big deal because it established an individual right, but it also said that individual, that individual right is not unlimited. And in that sense, 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. So that takes us to McDonald v. City of Chicago in the wake of Heller. Multiple lawsuits were filed against cities in Chicago challenging Chicago's gun bans. And the question for the court was whether the Second Amendment applies to the states, because Heller applied to D.C., which is a federal territory and not a state. So the question was whether this individual right that was established

Heller also limits state and local governments. And the Supreme Court said yes. And in answering that question, the court used that same 14th Amendment rationale that we spoke about what feels like forever ago, but it was just earlier in the episode when we talked about that first amendment case called Barron v. Baltimore with the ratification of the 14th Amendment, which prohibited states from depriving people of life, liberty or property without due process of law. The court interpreted liberty to include fundamental rights. So while for a long time, the rights laid out in the Bill of Rights only applied to the federal government, the Supreme Court eventually extended most of them to the states as well. And that's what McDonald was all about. The court said McDonald, in McDonald,

that the Second Amendment right to bear arms is indeed a fundamental right. And because of that, state and local governments have to respect it too. Next, we have New York State Rifle and Pistol Association v. Bruin. This is a more recent 2022 case. basically New York had a law that required people to show what's called proper cause to get a license to carry a handgun in public. And in practice, this meant applicants had to prove a special need for self-defense. So two people, backed by the New York State Rifle and Pistol Association, challenged this New York state law, arguing that it violated the Second Amendment. And the court ultimately struck down New York's law. It said that the Second Amendment does protect an individual's rights.

right to carry a handgun in public for self-defense and that states cannot require people to show a special or extraordinary need to exercise that right. So before Bruin, courts would use this balancing test when weighing gun restrictions. The court would look at the government's interest in public safety and then weigh that against the individual's Second Amendment rights. So if the court thought the safety benefits were strong enough, it usually upheld the law. But the Supreme Court rejected that approach in Bruin. And this was the significance of Bruin. So instead, the court said, whenever courts are analyzing the constitutionality of gun regulations, they have to look at the history and tradition of said regulations. So courts have to ask, is this type of gun law something the country

has historically allowed? If similar gun laws existed around the time the constitution was written or shortly thereafter, the law can stand. But if there's no historical tradition of that kind of law, then it's unconstitutional, even if the law improves public safety. So this is still very much the rule. It was just, I mean, the Supreme Court just decided this case in 2022. Then the last case we have to talk about is United States versus Rahimi, which was just decided in 2024. Zaki Rahimi had a domestic violence restraining order against him.

And under federal law, people who are under certain restraining orders cannot possess firearms. But Rahimi challenged this law. He argued that under the Supreme Court's ruling in Bruin, the government could not take away his gun rights unless it could point to a similar restriction from history. The court upheld the law, though. The court held that disarming someone who has been found to pose a credible threat to others is constitutional, even under Bruin's history and tradition tests. And this was a big deal, too, because after Bruin, a lot of courts were striking down gun laws, basically finding that if a regulation didn't have a close historical match from the 1700s, 1800s, it couldn't stand. But Rahimi clarified that history doesn't have to be a perfect match.

Instead, courts can look at historical laws that addressed similar dangers or even broader patterns of disarming people who were considered to be dangerous or a threat to public safety. So taking into account the three most recent landmark, you know, Second Amendment cases, those being Heller, Bruin, and Rahimi, there are three things we can take away. Number one, the Second Amendment does protect an individual right to keep and bear on. arms. Number two, that right is not unlimited. The government can still regulate guns in certain ways, particularly when it comes to dangerous people, sensitive locations, and longstanding types of regulations. And then three, when a court evaluates a gun law, they have to look to history and tradition. A gun regulation is constitutional if it's consistent with historical firearm regulation in our country, even if it's not a perfect match. Now, the court is hearing another Second Amendment

case soon. In fact, there's a chance this episode lines up almost exactly with oral arguments. Arguments are scheduled for March 2nd. But in that case, the question for the court is whether a law that prohibits the possession of a firearm by someone who is an unlawful user of or addicted to any controlled substance violates the Second Amendment. And again, the court's going to evaluate whether that law is consistent with any of our country's historical firearm regulations. We'll likely get a decision in that case sometime, maybe. June or July? I mean, if it's July, it's very, very early July, but potentially towards the end of June, maybe early June. And we'll of course talk about it when we do. So just to wrap up this conversation on the Second Amendment, something that's important to point out is that in all of these cases that have shaped the Second Amendment, the Supreme Court has noted that even the framers themselves accepted some form of regulation. Owning a gun was never seen as this completely unlimited right. Even in the early days, weapons were regulated. you know, yes, there were many laws that actually required able-bodied men to own firearms for

militia service. But the government also placed regulations on what kind of weapons were required, how those weapons had to be maintained, when they had to be brought in for inspections or drills. So there's a history of regulation, not to mention dating back to the early 1700s and 1800s, governments restricted carrying in certain places. So this is just to say that there is a history of government regulation and the court will look to this history of government regulation whenever it's assessing modern day regulations. Okay, now we can quickly talk about the Third Amendment. And I say quickly because it's not something that really applies today. It's actually one of the least talked about parts of the Constitution. But obviously when the framers drafted it, it was important to them.

So the Third Amendment says, quote, no soldiers shall in the time of peace be quartered in any house without the consent of the owner, nor in any time of war, but in a manner to be prescribed by law. End quote. Under British rule, colonists were forced to house soldiers in their homes. And not only were they required to house them, but they had to provide them with food and drinks and cooking supplies and firewood and laundry, basic living support. And this wasn't just during times of war. This was all the time whenever soldiers had nowhere else to go. So to the colonists, this felt like a violation of their property rights. It also felt like an invasion of privacy, kind of like military occupation, and they really didn't like it. So when the framers were drafting the Third Amendment,

they said, hey, with this one, we're going to make sure we don't have to house the soldiers, okay? And that's exactly what they did. So 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. So again, really no relevance nowadays, but that's what the Third Amendment says. And those are the first three amendments in the Bill of Rights. So next episode, we'll cover amendments four, five, and six. We'll have one more episode after that to finish the Bill of Rights. And then we'll move on to the evolution of equal protection and due process and separation of state.

Then we'll talk about the three branches of the federal government. And much, much more. There is a lot to learn. So I will see you next time.