In August 2017, hundreds of white supremacists came to Charlottesville, Virginia, ostensibly to protest the city council’s decision to remove a statue of Robert E. Lee. This Essay argues that Charlottesville’s vulnerability in the face of white supremacist invasions is a feature of all cities’ liminal status in American law. Municipal corporations neither enjoy the full power of the state nor the rights accorded individuals and private corporations. Among other limitations, state law restricts Charlottesville’s authority to remove Confederate war memorials or to regulate firearms. So too, our current constitutional doctrine does not easily permit cities to assert First Amendment rights against state-mandated local government speech. Nor can cities readily assert a collective civil or constitutional right to be free from violence and intimidation. The lack of either municipal power or municipal rights means that a city faced with the symbolic and physical “takeover” of its downtown by heavily armed aggressors has limited legal resources with which to respond.
Richard C. Schragger, When White Supremacists Invade a City, 104 Virginia Law Review Online, 58–73 (2018).