In the year and a half after right-wing extremists brought intimidation, violence, and death to Charlottesville, VA, the “Unite the Right” conflagration of August 2017 hasn’t been repeated despite its organizers’ initial plans to do so. At Just Security, Mary B. McCord of Georgetown’s Institute for Constitutional Advocacy and Protection explains how her organization used Virginia law to prevent similar future actions that ostensibly were entitled to constitutional protections:
State constitutional and statutory provisions in nearly every state prohibit private paramilitary activity like what occurred at Unite the Right.
Indeed, 48 states have a provision in their constitutions requiring the military to be “strictly subordinate” to civilian authorities. Twenty-eight states have statutes barring private individuals from organizing as military units, parading, or drilling with firearms in public. And 25 states, including Virginia, have statutes that prohibit two or more people from assembling to train in or practice the use of firearms or “techniques” capable of causing bodily injury or death in furtherance of civil disorder.
The discovery of these legal tools — thanks to a Lawfare post by University of Virginia history professor Phillip Zelikow — gave us the idea for a lawsuit. Not a lawsuit for money damages incurred by the victims of Unite the Right, but a forward-looking lawsuit seeking a court injunction preventing individuals and groups from returning to Charlottesville to engage in prohibited paramilitary activity.
The lawsuit, brought in state court, targeted individuals and groups “whose conduct fell most clearly within the prohibitions of Virginia’s anti-private-militia and anti-paramilitary provisions,” including both far-right groups and self-professed militias who said they were attending the demonstrations only to protect the First Amendment rights of the protesters. (The people I know who were there definitely did not feel “protected” by the heavily armed individuals all around them.) Despite the latter’s stated motivations, the people I know who were present Judge Richard E. Moore of Charlottesville’s Circuit Court declined to dismiss the suit on the defendants’ constitutional arguments:
No one is being denied their right to speak, to assemble and protest, or even to bear firearms. But when a group comes as a unit, in uniform, with military or law enforcement weapons, equipment, tactics, and appearance, under a clear chain of command authority, looking like the police or military, and they are neither a part of or subject to the focal, state, or federal military or police, and are subject to neither, this is a legitimate concern and question as to whether they may, in a specific situation, do so.
Ultimately, the parties reached court-approved agreements effectively and permanently barring the defendants from returning to Charlottesville “as part of a unit of two or more persons acting in concert while armed with a firearm, weapon, shield, or any item whose purpose is to inflict bodily harm, at any demonstration, rally, protest, or march.” McCord encourages other localities to use the lawsuit as a roadmap to prevent future violence:
Are there other uses for the state anti-private-militia and anti-paramilitary laws? You bet. They can be the legal basis for content-neutral time, place, and manner restrictions during protests and rallies where there is reason to believe violence may break out. Cities like Murfreesboro, Tennessee, have used them successfully as the grounds for prohibiting weapons and paramilitary activity from demonstrations on public property. And the threat of a lawsuit can also be a deterrent. Local jurisdictions can and should look to these state-law sources as one legal tool to protect public safety while also protecting constitutional rights.