Member of a private militia groups stands near the rally in Charlottesville in August, 2017. Joshua Roberts/Reuters

A new legal analysis finds that all 50 states have language on the books that can be used to prevent violence by armed white supremacists and private militias.

In August, 2017, Charlottesville erupted. The Southern city was the site of the “Unite the Right” rally, in which white supremacists, neo-Nazis, and Ku Klux Klan members marched. Violent scuffles broke out throughout, and counter-protesters were beaten and fired at. Ultimately, a young woman named Heather Heyer died, after being rammed by a car driven by a Unite the Right participant.

Two months later, the city and many of its businesses sued the Unite the Right organizers and private militia groups. Lawyers argued that the groups should be blocked from a repeat performance, because both the violent tactics used by the Unite the Right attendees and the presence of the militia groups far exceeded constitutionally protected free expression. Lawyers from Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) representing the plaintiffs cited a provision in the state constitution, which says all military activity must “be under strict subordination to, and governed by, civil power.” (The complaint was recently amended).

Now, a follow-up report by ICAP finds that all 50 states have similar laws on the books, and can use them to prevent another Charlottesville. “In this country, we respect and protect the rights of all to demonstrate for what they believe in,”said Mary McCord, senior litigator at ICAP and visiting professor at Georgetown Law in a statement. “But the Constitution does not give private armed groups the right to engage in paramilitary activity or usurp the role of authorized law enforcement.”

According to ICAP, 47 other states had “constitutional subordination clauses,” like Virginia’s (yellow states on the map below); twenty-eight had statutes banning the assembly of private military drills or parades without government authorization (states with red dots); twenty-five had prohibitions against paramilitary training or practices that involved firearms and potentially dangerous or fatal tactics—especially if these were used to promote “civil disorder” (states with maroon dots). Finally, 12 states had statutes making it illegal for civilians to assume duties of a government law enforcement or peacekeeping force, or wear similar uniforms (states with teal dots).

(ICAP)

Some cities have already been making use of these laws. The report mentions three in Tennessee—Murfreesboro, Shelbyville, and Rutherford County—that have used them to inform their permit process before “White Lives Matter” rallies, limiting weapons in  hopes of minimizing the potential for violence.

The American Civil Liberties Union (ACLU) had initially defended the rights of the groups organizing Unite the Right, suing the city of Charlottesville to let them allow the rally to take place downtown. Following the violence in August, some of its board members resigned in protest, arguing “what is legal and what is right are sometimes different,” and the organization has since tweaked its messaging.

What the new report finds is that while freedom to assemble and express ideas are supported by the law, the ability of armed groups to endanger public spaces may not be. ICAP is now asking the courts to prevent a repeat of Unite The Right, before anniversary of the rally in August.

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