This legal tactic can keep neo-Nazi protests out of your city
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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.
And we won.
More at: https://www.washingtonpost.com/outlook/this-legal-tactic-can-keep-neo-nazi-protests-out-of-your-city/2018/08/10/c80bc240-9c07-11e8-8d5e-c6c594024954_story.html?utm_term=.26ea8dfda646
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