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Note: So When Did Public Order Start Trumping Fundamental Constitutional Rights? Rethinking the Modern Interpretation of the Right to Assemble and the Role Police Should Play in Protecting That Right


The Assembly Clause of the First Amendment of the United States Constitution was created to protect what early Americans saw as a fundamental right at the heart of what it meant to be a free and democratic society. Throughout the eighteenth and nineteenth centuries, public assemblies played an integral part in American politics and society. These assemblies varied between planned and organic, controlled and chaotic. Whatever characteristics could be attributed to any particular assembly, they were all protected by the Assembly Clause, both in the eyes of law enforcement and the judiciary. Over the last century, however, the right of assembly has taken a back seat to safety concerns and a desire to maintain the status quo. The militarization of America’s local police departments throughout the country has exacerbated this phenomenon.

This Note contends that the militarization of police has created an at-mosphere that is inherently at odds with the freedoms guaranteed by the Constitution. To rectify the mistakes of the past, the Note advocates for three different approaches to the problem. First, it advocates for judicial review of the constitutionality of the current model of police-protester interaction during public assemblies and the modern judicial interpretation of the Assembly Clause. Second, it advocates for an introduction of legislation that would first cease the flow of weapons and training from the military to local police forces and then reverse this failed experiment altogether. Third, this note suggests a rethinking of how police interact with the communities they are called to serve and protect, suggesting that the community policing model best balances the need for maintaining safe communities while still protecting individual freedoms.