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These guys aren't law enforcement. Is this about to become normal?

Photo by Chip Somodevilla/Getty Images

With more white nationalist rallies planned in the coming weeks, including one this upcoming Saturday in Boston, cities across the country may soon be looking for ways to try to prevent the sort of violence that took place last weekend in Charlottesville, Virginia.

Bostons Mayor Martin Walsh is reportedly looking into legal grounds to stop the next alt-right rally from happening in his city. Those rallygoers are permitted, though, and have a First Amendment right to peaceably assemble.

Peaceablyis the key word there, however. The white supremacists who showed up in Charlottesville were reportedly armed to the teeth. Virginia Gov. Terry McAuliffe claimed his state police were outgunned on Saturday, while one white nationalist leader showed off his firepower in a popular Vice News documentary about the weekends events. Another rallygoer in that videoclad in camouflageseemed to be warning police that he planned to send at least 200 people with guns to gather equipment that was at the site of the rally. Heavily armed paramilitary groups barely distinguishable in appearance from law enforcement officials, meanwhile, made their own show of force in Charlottesville, saying they were there to keep the peace between white nationalist rallygoers and counter-protesters.

As my Slate colleagues Dahlia Lithwick and Mark Joseph Stern reported on Monday, those trying to exercise First Amendment rights clashed with those claiming to exercise Second Amendment rightsincluding Virginias open-carry lawsin Charlottesville, and the guns won. Current constitutional doctrine, they argued, is poorly equipped to handle a situation where one heavily armed group of assemblers is able to silence with their weaponry the free speech rights of a different group of would-be assemblers.

But University of Virginia professor Philip Zelikow argues that the Constitution does allow for restricting armed rallies. Writing in Lawfare, Zelikow notes that there is precedent for preventing groups of heavily armed white supremacists from gathering in intimidating mass assemblies:

The judge granted their request, the order worked, and the group was enjoined from displays of intimidation.

Reading a description of one white supremacist group in Charlottesville by BuzzFeed News reporter Blake Montgomery, its hard not to think of that standard for an illegal paramilitary gathering:

In his article, Zelikow went onto write that, while the Second Amendment guarantees a right to a well-regulated militia, federal courts have held that private militias do not have the right to free reign.

When private self-styled militias get organized, equipped to fight, and travel to my town for a confrontation, this is not a Second Amendment story, Zelikow told me over email. They are organized to violate civil rights and intimidate my townspeople, to show their strength not with their speech, but with their firepower.

Zelikow argues that towns and citizens have the right to sue and enjoin such heavily armed organized groups from staging such rallies. He also suggests that rallygoers like the ones in Charlottesvilleas well as some of the counter-protestersmight have fit the standard for such an injunction. [T]here were a number of clusters that deployed together with standardized dress (to recognize each other), standardized insignia, similar combat/riot gear, and similar classes of weapons, Zelikow, who worked in multiple prior presidential administrations, said over email. Not incidentally, the Antifa [anti-fascist] group also has some standardized identifiers (red neckerchiefs, for example), deploys together in an obviously coordinated way, and carried assault weapons.

(At least one leftist group was reported to have showed up armed with guns.)

Ultimately, Zelikow compares the appearance of these sorts of heavily armed groups asserting the right to mass public assembly to darker periods in world and U.S. history:

The coming weeks seem likely to continue to test that line between protected assembly and unprotected civil violence. The ability of civil authorities to respond when that line is crossed also seems likely to face some very serious challenges.

See more here:
Is There a Way to Prevent the Next Charlottesville? - Slate Magazine (blog)