Keeping out the militia: Law group says legal remedies exist to prevent another August 12

Georgetown Law School’s Institute for Constitutional Advocacy and Protection says all states have the power to prevent militia-like activity. Photo by Eze Amos Georgetown Law School’s Institute for Constitutional Advocacy and Protection says all states have the power to prevent militia-like activity. Photo by Eze Amos

New research shows that all 50 states can legally restrict private militia and paramilitary activity at events such as the summer’s deadly Unite the Right rally, according to the University of Georgetown Law School’s Institute for Constitutional Advocacy and Protection.

The legal organization, which filed a lawsuit on behalf of the city last October against 25 groups and individuals that allegedly engaged in unlawful militia-like activity on August 12, claims the independent militiamen and women, many with AR-15s slung over their shoulders, made tensions boil at the rally.

In its litigation, ICAP aims to prohibit the defendants from returning to Virginia to engage in the type of behavior seen over the summer, and during a February 8 press conference, senior litigator Mary McCord announced a set of new tools every state can use.

“Violent conduct is not protected by the First Amendment,” she said.

Aside from independent groups such as the Pennsylvania and New York light foot militias present at Unite the Right, McCord says several of the white supremacist groups also fall into that category because of their “militaristic battle behavior,” combat-type helmets and reliance on bats, batons, clubs, sticks and reinforced flag poles for protection.

But perhaps this could have been prevented due to already existing clauses, statutes and prohibitions, which could be used proactively to impose restrictions during an event’s permitting process to reduce the possibility of violence while protecting the right to free speech and peaceable assembly.

“All in all, what this research found is that all 50 states have one of these,” McCord said.

On October 28, the League of the South —a white nationalist group named in ICAP’s lawsuit—planned two White Lives Matter rallies in Shelbyville and Murfreesboro, Tennessee.

Adam Tucker, an assistant city attorney for Murfreesboro, said the folks at ICAP immediately reached out with suggestions for restrictions the locality could impose to prohibit violent paramilitary activity like that seen in Charlottesville.

Tucker said city officials were able to write a prohibition of paramilitary activity into the rally’s permit, and on the day of the planned rallies, though members of the league showed up at their first planned rally in Shelbyville, they canceled the second one, calling it a “lawsuit trap” on Twitter.

Legal remedies

Paramilitary activity prohibitions: 25 states (including Virginia, where it’s a Class 5 felony) criminalize assem-
bling a group to train or practice with firearms or techniques that could hurt or kill someone, and intending to use those practices in a civil disorder.

False assumption statutes: 12 states (including Virginia) bar acting like a cop or the unauthorized wearing of military-like uniforms.

—University of Georgetown Law School’s Institute for Constitutional Advocacy and Protection

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