One year ago, an ad hoc coalition of armed far-right paramilitary groups marched into Charlottesville as part of the now-infamous Unite the Right rally. Many of their members wore matching uniforms, marched in military-style formations, openly chanted white-supremacist slogans, and invited confrontation with counterprotesters and law enforcement. In some cases, their gear and maneuvers imitated those used by armies of the past, and their weapons, whether firearms or cruder instruments such as shields, bats, batons and flagpoles, were deployed in coordination to intimidate and signal that they were, as they put it, “ready to crack skulls.” The day’s fateful events culminated in the death of 32-year-old Heather Heyer, for which one marcher has been charged with first-degree murder and two federal hate crimes.
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.)
