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And those arrested could be hanged.

When the new American government was formed, the Second Congress enacted the Militia Act, a more limited law governing unlawful assembly. Federal authorities could use force to break up assemblies only if they amounted to insurrectionsand the act had to be invoked by the president himself, not by his appointees.

The right of assembly had a rough go for the first century and a half of the Constitution. By the end of the 19th century, no less an authority than Oliver Wendell Holmes Jr. (the son of a founder of this magazine, and then a state judge) briskly dismissed the idea of expressive rights on public property. Public property belonged to the government, Holmes said, not to the people at all. For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private home to forbid it in his house. The U.S. Supreme Court tersely affirmed Holmess opinion. Peaceful assembly be damned. The people were not to come out of doors without the permission of their rulers.

Nora Benavidez: First Amendment rightsif you agree with the President

Only half a century later, in a case about the rights of labor organizers, did Justice Owen Roberts, writing for a plurality, cleanse the law of Holmess view of government as the owner and citizens as guests. Roberts wrote:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all . . . but it must not, in the guise of regulation, be abridged or denied.

The people own the streetsnot the police, not the military, and not Donald Trump. And regulation of their use of the streets must be conducted with the greatest care, recognizing that occasional inconvenience caused by demonstrations is the price America pays for free government. The fact that some demonstrations are violent cannot be used to strip all Americans of their right to assemble.

That right has been under assault since the day Trump took office. As outlined in a new report by PEN America, red-state legislatures have been indefatigable in debating and passing laws designed to penalize protesters for disfavored causes. The Fifth Circuit Court of Appeals last year approved a grotesque opinion holding that anyone who organizes a protest can be suedand thus possibly bankruptedif someone else present commits an illegal act.

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Trumps Grotesque Violation of the First Amendment - The Atlantic