In response, advocates of nonviolence and tolerance have advanced various strategies for dealing with these and other extremist groups. The British group Hope Not Hate endorses
infiltrating, naming and shaming white-nationalist organizations. In the wake of Unite the Right, a joint congressional resolution called for increased federal action, including through prosecutions against those committing hate crimes motivated by ethnic or racial animus. The Aspen Institute’s Justice & Society Program suggests that organizations serving young Americans teach tolerance. Some have even advocated counter-violence against neo-fascists, arguing that it’s okay to “punch a Nazi,” an ugly, illegal tactic.
But there is another tool, sitting right in front of us, for reining in these groups: Most states have constitutional language, criminal statutes or both barring unauthorized paramilitary activity. Every state except New York and Georgia has a constitutional provision, akin to Virginia’s, requiring that “in all cases the military should be under strict subordination to, and governed by, the civil power.” In other words, private armies are proscribed in 48 states. You can’t legally organize with others into battalions to fight those with whom you disagree. As University of Virginia law professor A.E. Dick Howard, who formerly directed the Virginia Commission on Constitutional Revision, has written, this provision “ensures the right of all citizens . . . to live free from the fear of an alien soldiery commanded by men who are not responsible to law and the political process” — an accurate description of the militant groups that invaded Charlottesville. (Washington, D.C., the site of alt-right protests planned for this weekend, has no such provisions.)
In addition to constitutional provisions, 28 states have criminal statutes that prohibit individuals from forming rogue military units and parading or drilling publicly with firearms, while 25 states have criminal statutes that bar two or more people from engaging in “paramilitary” activity, including using firearms or other “techniques” capable of causing injury or death in a civil disorder. A dozen states have statutes that prohibit falsely assuming the functions of law enforcement or wearing without authorization military uniforms or close imitations. On the books for years, these laws are rarely invoked. But with the invasion of public spaces and intimidation of citizens that we’ve seen in Charlottesville and around the country, it’s time states employ them to prohibit the coordinated use of weapons at demonstrations and rallies, whether through permitting conditions and other restrictions or criminal enforcement when warranted.
For democracy to work, the state must have, as sociologist Max Weber once described it, “the monopoly of the legitimate use of physical force.” We often take that idea for granted in the United States. But the recent tide of political violence has called it into question. It wasn’t just Charlottesville: There was also the “Battle of Berkeley
,” where protesters and counter-protesters repeatedly clashed over plans to bring right-wing and white-nationalist speakers to campus, and the recent Patriot Prayer rallies in Portland, Ore., that capped a series of violent protests. Most alarming has been the increased adoption of paramilitary techniques and weaponry.
To prevent rogue militia groups from repeating the violence of the Unite the Right rally, we used Virginia’s anti-paramilitary laws to bring a lawsuit in Charlottesville, led by Georgetown’s Institute for Constitutional Advocacy and Protection on behalf of the city and several businesses and associations there. The suit didn’t seek money damages for injuries suffered during the rally. Instead, we sought court orders prohibiting white-nationalist and neo-Nazi groups and their leaders; militia organizations purporting to defend the First Amendment rights of these groups; and a self-described “anti-fascist, anti-racist” organization — that, without authorization, deployed armed members to create a security perimeter around a park used by counter-protesters during the rally — from returning to Charlottesville as coordinated armed groups during demonstrations, rallies, protests or marches.
Although many of those who had watched with horror as Unite the Right devolved into violence lamented that little could be done, given the First Amendment’s protection of free speech and the Second Amendment’s protection of the right to bear arms, the Charlottesville lawsuit was carefully crafted to respect constitutionally recognized rights. As Judge Richard E. Moore wrote in rejecting motions to dismiss the case, the relief requested would not deny anyone “their right to speak, to assemble and protest, or even to bear firearms.” By restricting paramilitary activity and the usurpation of military and police powers by private groups, the court orders sought by the lawsuit would restore the long-standing public-private equilibrium disrupted by those who descended on Charlottesville last August.
In total, 21 defendant individuals and organizations, including rally organizers Jason Kessler and Elliott Kline, and prominent white-nationalist organizations Vanguard America, Traditionalist Worker Party, League of the South, and the Nationalist Socialist Movement, entered settlements prohibiting them from returning to Charlottesville in groups of two or more, acting in concert while armed with any type of weapon during any demonstration, rally, protest or march. Leftist militia Redneck Revolt also settled. Two other defendants that failed to respond to the suit were subjected to similar prohibitions.
Although the court orders don’t resolve all the dangers revealed in Charlottesville last year — for example, they apply only to the named defendant individuals and groups, plus their successors — they nevertheless provide a tool that officials can use to prevent or mitigate the potential for violence at rallies. Should any of the defendants violate the court orders, they will be in contempt of court and open to prosecution. Such cases are not without precedent: Violation of a court order prohibiting paramilitary activity under North Carolina’s laws resulted in the conviction of the leader of the Carolina Ku Klux Klan in the mid-1980s. That’s a powerful deterrent.
Individuals and groups not named as defendants in the case, and not subject to the court orders, also have good reason to avoid attempting to reprise last year’s clashes. That’s because the anti-paramilitary statutes we used in our lawsuit are criminal statutes, and breaking those laws risks criminal prosecution.
Other jurisdictions can also dust off constitutional provisions and state laws to restrict weapons and paramilitary activity at events — whether through the permitting process or public announcements — where anticipated attendance by extremists poses serious threats to public safety. Shelbyville and Murfreesboro, Tenn., where White Lives Matter rallies were planned last October, did just that, avoiding the violence of Unite the Right. A spokesman for the League of the South, which organized the Tennessee rallies, later said he’d “had some intel Murfreesboro was a lawsuit trap” and cancelled the event there.
Charlottesville is still working to address the social and economic wounds caused by generations of white supremacy, exacerbated by the impact of Unite the Right on marginalized communities. The Charlottesville lawsuit is just one example of how we can, as a nation, innovate against hate.
Government can maintain
civic order by asserting its monopoly on the organized use of force, preserving the conditions that allow citizens to speak their minds freely and petition for redress of grievances without intimidation.
We can’t predict what will happen in Charlottesville this year; Kessler dropped his effort to obtain a permit for an anniversary rally, but that doesn’t guarantee that smaller groups of white nationalists won’t gather, for which permits might not be required. It does mean demonstrators will have to toe the line and assemble peacefully as citizens expressing their points of view, rather than mimicking Brownshirt-style paramilitaries.