First Published on this website on 12/28/2020 - Re-Posted on 01/12/2021

 

Second Amendment to the US Constitution

The Founders’ Most Radical Political Idea

Copyright © 2020 by García-González All Rights Reserved

Preliminary Comments

 

As far as I am aware, the idea behind the second amendment is uniquely American, not in the sense that citizens of a given country are permitted to purchase arms for the specific purposes of defending themselves against crime or to hunt, but in the concept of protecting a free State.

To allow or permit citizens to bear arms to protect the country they live in is an unprecedent development; uniquely American and even inconceivable to the rest of the world who historically have protected their nations with standing armies; either the king’s army, or the president’s army, it is the official army, rather than the people, who is entrusted to protect the nation, a free one or otherwise.

Therefore in this article, I exercise my imagination to explain what I believe was the founders’ frame of mind at such time, what they meant by “protecting the free State,” when instituting the second amendment and why they favored a people’s militia over a president’s official army to do the intended job.

Background

 

When designing their project of independence from Britain, the founders rejected two important British institutions; the monarchy and the standing army used to colonize foreign lands. The roots of the second amendment’s intent are connected to those two rejections as follows.

 

The protection of the American free State involves two fronts: a potential invasion by foreign powers constitute the external front, and a potential development of a domestic tyranny as the internal front. In similar fashion to the rest of the world, the Union can be protected against invasions with a standing national army, which realistically speaking, in modern times would be the president’s army, therefore, if the only potential threat was the external one, there would be no need for an alternative to an official national army. It is the internal potential threat to the free State, in my opinion, that led the founders to seek an alternative to the official military arrangement traditionally favored by the rest of the world.

When entertaining potential emergence of a domestic tyranny, the first suspect of distrust are the armed forces who hold the highest power, since a tyranny requires the support of the armed forces in either the form of the king’s or president’s army, and in the case of a military coup, a military tyranny would overtake the nation. The standing army of a given country could either protect it or overtake it, the overtaking could be for good or evil motivations. 

 

Regarding tyrannies, it would be rather unusual that it would proclaim itself a tyranny, more likely, it would denominate itself as a protector of the State, and according to such, a degeneration of an originally legitimate nation (it’s character, customs, practices, etc.) could occur with the current government claiming protection of the State and the governed claiming tyranny.

 

With the armed forces (the military leadership) likely to be regarded as a prime suspect for the establishment or backing of a tyranny on the basis of the physical power commanded by it, and with no plans or intentions for colonization or invasion of foreign lands, the founders favored a new alternative: the people’s militia over the traditional standing army that, in the case of the Union, would had been the president’s army.

 

I am not an expert on the subject—I believe a people’s militia is a more informal army than an official national army and the main difference between the two is that an official national army must protect the government; the national army is formed by citizens, but they must obey orders from the government. However, the people’s militia also formed by citizens according to the founders’ will and intent, is authorized to overthrow the federal government under very negative circumstances. Also, a people’s militia, like any other army, requires leadership but its leaders do not decide whether to overthrow the federal government. It must be inferred that it is a democratic decision of a majority of militia members whether to overthrow it.

Their Most Radical Political Idea

 

As surprising as it appears today, the founders had the now long-gone luxury of assigning the protection of the country to citizens who would prepare themselves in military matters, but who would only become active in the second amendment assignment should a foreign invasion or a domestic tyranny emerged.

 

The purpose of the people’s militia is very clear in the case of foreign invasion and the military technology existent in the founders’ time was sufficient for the people to react quickly, if need arose, and solve the problem; there was no need for extensive preparations or sophisticated military gear. Technically, the second amendment intent only works if both sides of a given military confrontation have more or less the same weapons; the people’s militia in its informal constitution could defeat an invader with similar weapons. 

 

The internal purpose of the peoples militia is not as clear as the external, but in my best reasoning, it is legitimacy to overthrow the US government (a legitimate self-power assigned by the founders to the people’s militia). The people’s militia could overthrow the federal government if the weapons the citizens store at home are similar to those used by the government.

 

The intent of the second amendment covers two issues, and two issues only: to repel invasions and to overthrow the US government, the latter when such government, or some characteristics of the Union, such as customs, practices, etc., degenerate beyond certain limits.

 

In other countries, there is no explicit, traditionally assigned role of protecting the country from internal degeneration, it is a given that the armed forces, which are the president’s army, are “naturally” assigned to stop the degeneration. So if the president does not order it (since the president is not officially assigned to do it), a military coup could take place when no other solution works out, but in the founders’ cautious frame of mind, a president’s army would not be trustworthy because military leaders could become the source of the problem, as has been the case in some countries.

 

How does the present differ from the founders’ time, and how would they react if they were to learn about present circumstances of the modern US? The three most striking differences are 1) the way technology, including firearms, has changed military matters, 2) crime, and 3) the rise of the US military’s (implicitly) taking over the original people’s militia concept.

 

The founders reaction, to put it as a critique, would be to first accept that the US now needs a strong formal military, in contrast to the informal nature of the people’s militia, especially in protecting the free State; simply based on technology having made the original people’s militia obsolete in regards to citizens’ speed in defending the Union by being able to bear arms.

 

However, they would not accept a president’s army since the US armed forces are obligated to obey the government and are under civilian command, rendering the original intent of the second amendment (in the domestic front of protection) unpractical. Most likely, the founders would argue the US armed forces as they are currently constituted protect the government, not the free State. In other words, only if the government happens to protect the free State would the US armed forces also protect it, if so ordered by the president.     

 

The global reliance in a standing official army is now common sense even for the US, but the founders would criticize the US military in its role of being “the president’s army,” claiming the responsibility they assigned to the people’s militia cannot just disappear by a statement about civilian command of the US military (realistically, it’s the president’s army), and they would find it puzzling and even unconstitutional that high military officers would pledge allegiance to the US Constitution.

 

Their judgment on the US military would be as swift as: “You must embody the people’s militia duty, both in regards to external and internal negative developments, your allegiance should be to the free State; the Union, not to the US Constitution, the US president, the US Congress, or the US judiciary. You could fire or suspend them all should the free State degenerate beyond what is acceptable; there is no room for both a people’s militia and a standing official army (the people’s militia would be easily defeated by the president’s official army), you have surpassed the original militia in military power and must now equal it in duty.”

 

Regarding why the founders had the luxury of favoring a people’s militia, it comes down to military technology. In their time, an invading army would had attacked with similar weapons, and the number of troops available was a major factor (superiority in troops numbers could win most battles). Therefore, when thinking about a militia, their thoughts were not about a few militia members; it was the entire US’s male population of enlisting age, and to present such a point in connection to the US Constitution was a way to make the concept endure.

 

Arms were needed to protect the free State, not necessarily for personal protection. The founders knew what country was likely to invade: Great Britain. Although Americans were proud of their independence enterprise, and were admired by supporters in other countries, at such turn of events, to Britain, it meant treason against the king by a group of his subjects. Therefore an invasion of the colonies was inevitable, and of which the British were confident the traitors would be detained, transported to Britain, and executed.

 

The stakes were high. It was only a matter of time until the British army invaded to reclaim the colonies. If such war was won, the Union would be a protected free State but if things went wrong, the founders could have died in combat or ended up hanging from their neck in Britain.

 

As it turned out the founders’ independence project was a feasible one. the British army— the most powerful army in the world at the time—was defeated by a people’s militia made out of former British crown subjects, and such victory became a justification and lent prestige to the people’s militia concept.

 

It all took place when the number of troops engaged in combat and the degree of individual bravery exercised in it were the major factors in war—what is referred to often as the glory of war—before technological precision began to diminish the human factor in favor of more sophisticated weapons which ultimately allowed a few individuals (or even a single individual) to manage immense destructive power gained at the cost of what in the old times was the traditional, combat soldier’s prestige.      

 

That was the environment leading the founders to institute the second amendment; it was the Union, not individuals per se, that needed to be protected. The entire American male population, free to bear arms, would also be free and ready to confront the sure-to-come British invasion. It could be correctly said that the free State would also be protected against any other invasion, although other invasions in such period were unlikely.

 

Crime was insignificant in the founders’ time in comparison to the modern US. There was no organized police force, and the founders would again be surprised by the amount of crime taking place in the modern US, and that citizens need both to bear arms and to have armed police officers protect them, not from a foreign invasion or a domestic tyrant, but from crime. What a surprise!

 

I do not believe crime was a motivation for the second amendment. The second amendment is not meant for individuals to protect themselves, rather if they protect the free State from both external and internal harm, safety would be at hand for all. I think the founders would say that people should not commit crimes and I would be the individual assigned to explain to them why there is such a high crime rate.

 

Of course my explanation would begin with a concept frequently found in my writing: the negative effects of population growth. Our conversation about crime would only be a “warm-up” before getting into the subject of how to restore the republic to something even resembling the one they founded. For such, I see myself presenting a report of how things stand and to be able next to propose the way out for their agreement or rejection.

How is the free State Undermined in the Absence of an Official Tyranny? 

 

The US has progressively instituted security agencies—the latest one is Homeland Security—which are anti-crime arrangements and belong to the federal structure, so it could be argued that the domestic front of the free State is covered by them, while the US military takes care of the external front.

 

Such argument would be sound if crime was the only factor affecting the US within its borders. The free State however, is an immaterial entity which should not be confused with the physical US territory, and if one was to concentrate on such immaterial essence, the main factors which could undermine it are liberal laws instituted by Congress, and the behavior and lifestyles of a portion of the population when such portion becomes a majority who imposes its frame of mind in a way that leads Congress to institutionalize it.

 

Also there is the potential of the American free State being undermined by liberal opinions of the US Supreme Court. For example, on the subject of abortion, a majority of Supreme Court justices were able to use their intellectual skills to accommodate immorality within the constitutional order using technical arguments that turn something previously unacceptable into a common, ordinary choice. Not all liberal-based laws and regulations are harmful to the American free State but the ones that are harmful are much more than most conservative-based laws and regulations.

 

One should be clear about what is socially and politically normal in the American society instituted by its founders: that liberal-minded individuals need to adapt to the conservative fabric of the social order is normal because it was founded over conservative values. However, that conservative-minded individuals need to adapt to a liberal fabric imposed by new generations of Americans is not normal; it constitutes a degeneration of the original character usually known as American.

 

The founders were not perfect; they made a big mistake in including slavery in their social experiment, and I believe today they would admit the error and deeply regret such big mistake. Put aside such misstep for a moment and one can see their achievements in the nation’s design and self-government proper are extraordinary; it could be said American society worked well while they were alive. Their period in history gave them some luxuries, but they applied themselves to their national project and national security was handled well with minimum resources.   

 

In the modern United States the rise of the federal “security” structure is parallel to the rise of “big brother” surveillance of American citizens (in various federal government, state governments, and private sector versions) by cameras and microphones unprecedently undermining their privacy and suggesting that no one can be trusted anymore. And while the explicit mission of security agencies is to protect the public, the global implicit duty of the federal security apparatus is to protect the government, since a government turned into a tyranny would order all agencies to confront a rebellion if the need arose.

 

It is an inconvenient political fact that employees of any given security agency, including the armed forces, must obey their superiors. They must obey the government, in ordinary times and in special cases should special circumstances arise; the success of any institutional security effort depends on obedience and takes such obedience for granted. In the modern United States, after liberal legislations have entrenched themselves in the social fabric, all security institutions, agencies, and organized official forces, down to the smallest police department, constitute a shield of individuals paid and obligated to obey their superiors who implicitly (and explicitly if necessary) enforce acceptance of the new liberal American society by all conservative citizens who disagree with the way things stand. 

 

Should conservative Americans decide to rebel against the liberal environment (which emerged out of lawful democratic developments) reclaiming the conservative society that they feel was taken away from them, they would be defeated by the aforementioned national shield. In such a confrontation, conservatives could be labeled as traitors or seditious and security forces as protectors of the (liberal) State, such state of affairs would most likely be regarded by the founders as a nightmare, a total defeat of the ideal they cared enough to prominently display in the US Constitution as its second amendment.

 

The entrenchment of liberal concepts in recent American society, a democratic victory of the left, and a lawful achievement of liberals, would have no impact on the founders’ judgment, it just illustrates the limitations of the democratic system and its potential to undermine core values the republic was founded on, a system very strong and effective at the time of the founders, but which weakens as time elapses. They would probably say, “Of course, the democratic system is not a competition of conservative and liberal ideologies, not if ‘liberal’ means what it does in modern United States. A competition which would be harmless to the Union’s free State could develop between different shades of the one original American ideology provided the liberal side does not push for changes based on atheist values, as it does, for example, with its pro-choice position on the subject of abortion.”          

 

The present state of affairs comes about under the express pretense of the US being a country of laws, but in its beginnings, the US was a country of ideals and convictions reflected into laws. What is reflected these days in some laws is mediocre liberal ideology harmful to the free State. The founders would rate a given liberal idea either as necessary and appropriate under modern (current) circumstances, or inacceptable on moral and/or ethical grounds, and they surely would strongly oppose and condemn liberal ideas that could harm and undermine the free State.

The Conversation

 

My report to the founders would be something like the following. 

 

The second amendment concept is now obsolete; it was killed by major technology developments, including firearms, as they apply to the military sphere.

 

In implicit substitution of it, a powerful, official US army developed, which de-facto overtook the people’s militia concept, but the substitution was never recognized or announced due to the ordinary status of national armies around the world.

 

It did not look odd that, like the rest of the world, the US would have an official, national, standing military and there was no inquiry, as far as I know, into the consequences of such development over your original people’s militia concept.

 

However, for an inquisitive mind, it is odd that militias, plural, would be found in some US zones, and did not disappear when the US military developed into the national official army. Therefore in the basis of such “militias” who claim your original concept as their basis, and a lack of action on the part of the federal government to end such militias as inauthentic, it can be concluded the US military is not the embodiment of the people’s militia.

 

But, how can that be? The US military is much more powerful than those “militias,” consequently, if it is not the embodiment of the original people’s militia, it is an unconstitutional entity (according to the intent of your second amendment frame of mind) which, under orders of the president, would smash any militias before they assumed their constitutional right to overthrow the US government, supposing there was a reason to.

 

On the other hand, let us suppose for a moment the US military is the embodiment of the original people’s militia, and such alternative “militias” are tolerated just as harmless and entertaining, knowing full well they are not going to act against the government.

 

Another problem surfaces in the official claim about the executive power of the US government—the president in particular—being the chief of the armed forces, the US military is under civilian control. How could the US military be both the embodiment of the people’s militia and the president’s army? In other words, if it is somehow determined that American society is now a tyranny, which lacks a particular tyrant but has degenerated toward such and the current government denies it, what would be the US armed forces’ duty; to obey and protect the government, just because such government was installed constitutionally and due to the armed forces’ allegiance to the constitution?

 

If so, who protects the free State? The militias wherever citizens get together? Would such militias have a chance against the US armed forces if the president was to order their eradication?       

 

There is a major, major contradiction in the following details. Americans understand the right to bear arms is unlimited, purchasing any types and amounts of weapons and storing them in their residencies, is constitutionally allowed and protected. If someone (let say one who is not familiar with the US) were to ask, “Since the US has a powerful national army that takes care of potential invasions, why would any given American store a military arsenal at home?”

 

Of course it is to be ready to fight and overthrow the federal government, if and when a tyranny emerges, either with a tyrant holding power, or when the American social fabric (elapsing under lawful democratic rule) degenerates to a certain unacceptable level.

 

So far so good, according to the constitutional intent of your second amendment, but then here comes the inexplicable state of affairs. The US armed forces, in their role as the president’s army, would smash the militias, no matter how many weapons some citizens possess; the US military, backed by a large federal budget, will always be stronger, and the government will not be overthrown.

 

As hard as it is to believe or to understand, if the US military were not the embodiment of the original people’s militia, the modern US government would be, de-facto, a type of tyranny backed by the most powerful army in the world. Therefore should that be an actual situation American citizens would no longer have any chance to fulfill your mandate regarding the right to bear arms with the express purpose of overthrowing a domestic tyranny that emerged as an unexpected, official, democratic aftermath.

 

Gentlemen, I am talking about the new structure of the United States’ government, from the development of its armed forces to the shape it is now. I am not suggesting active tyrannical action on the part of the government, only that the federal government is now perfectly positioned to become a tyranny, which would not be defeated by the people thanks to the pledge of allegiance of high military officers to the constitution you wrote, and their willful subordination to civilian command. Your second amendment concept is long gone. The protected free State remains only in regards to active protection of it against foreign invasions, but it has expired in regard to a potential domestic tyranny.

 

At such point in my report, the founders would surely ask me to double check my claims, asking “How could this situation had deviated so far from our original intent?” Of course the answer is, “Special interests eventually gained the upper hand in American society, not illegally, but by means of pushing the concept of ‘necessary pragmatic decisions,’ which modern society requires.    

 

After explaining the issue of special interest groups and lobbies, I would reply: “From the moment I discovered such contradiction, I was as surprised as you, but we could bring in experts to affirm or deny my claims.” 

 

I expect the founders would accept allegiance to the constitution is a necessary requirement for all usual categories of individuals who are mandated to pledge it except for high military officers, that is, after the US military assumes the role of the original people’s militia.

 

There is one more thing the founders would be likely to ask. “Are you sure the problems caused by special interests cannot be solved in Congress democratically? To which I would reply: “Would you categorize federal judges as liberal or conservatives?” They would likely answer, “Are you implying that, for example, if a judge imposes a five-year sentence he is a liberal, but if a fifteen-year sentence he is a conservative”?

“That’s not exactly what I mean. If a federal judge favors or tolerates abortion on demand as a common choice for citizens to make, would that judge, in your opinion, be an authentic judge who happens to be liberal, or someone clearly unfit to judge and even less fit to preside over a US courthouse?” 

 

Well, that is the current condition of American society, some special interests groups and lobbies do not understand what is in the best interest of the free State and they occupy or influence positions in Congress and the judiciary. If liberals become the majority, that single fact could end the potential restoration of the republic you founded. When that occurs, it would be easy to understand the severe limitations of the democratic system. 

 

Democracy is only as good as the good judgment of the individuals who make the decisions; it is not a competition between conservative and liberal frames of mind in which the winning side always has governing legitimacy. The winning side’s intentions or actions could, in some cases, go against the best interests of the free State. It would only be a liberal presumption to claim the character of the free State is set by whatever a current majority finds fit to institute. The character of the American free State was set by you, its founders, and could eventually cease to exist if reset by liberal minds.

Conclusion

 

As it turns out, assuming and fulfilling the role of the original people’s militia by the official national military is no small enterprise; it becomes a heavy obligation requiring impeccable character in the top tier of military officers for the following reasons.

 

The choice the founders needed to make is one of the most difficult choices for successful government design; Who could be trusted to protect the free State in a situation of domestic tyranny? Military officers or the people? 

 

Around the world, military officers are trusted because they operate under orders from a king or a president, and when a military coup is needed for good reasons, there is no choice but to trust the actualizer.

 

The founders favored a people’s militia, but why? Was it because they had no confidence in military officers, or was it to avoid placing them under such a heavy obligation? It happens to be an inconvenient fact that for the official US military to assume the original militia role, some top tier military officers would be forced to make political decisions after they personally judge social developments. 

 

How high a military rank am I talking about? Well, we could begin with the top rank: Chairman of the Joint Chiefs of Staff, but following the order of military ranks downward would not make sense if precision is sought, since we are talking about a “grey area” not a precise rank range, the range of ranks affected by the people’s militia concept comes down to any military officer who could and would: exert enough persuasion and authority over military ranks to compel actual obedience and stage a successful coup.

 

However I need to present two different scenarios: 1) A US fully prepared for the foreseeable future in which the US military is an independent member of the federal structure with one officer assigned to oversee the well-being of the free State, and 2) A US unprepared for the foreseeable future (the current situation) in which a military coup would be needed to restore the republic.

 

The key issues of option number 1 are that the democratic system did not lead to a US military established as an independent member of the federal structure; with one officer assigned to oversee the well-being of the free State. Instead, it led to civilian command of it, implicitly assuming any social shape resulting from lawful democratic practices must be accepted, tolerated, etcetera, and since military independence did not happen democratically, it will take a military coup to make it happen if that is what the military institution wants.

 

The key issue of option number 2 is the military officer who, by personal initiative, decides to embark on the steps needed to restore the republic (beginning with a coup) must be able and successful achieving the following: Suspending the US Constitution, de-facto firing the US president and his cabinet, dissolving Congress, suspending the federal judiciary, notifying each state governor of who is in charge of the Union, ordering each federal agency to report to him, confronting any military branch in disagreement with the coup compelling agreement or obedience, and either making political decisions or assigning a civilian/military council to make those decisions operating an emergency government by decree or executive orders.

 

Common sense tells me the most likely candidate to stage a coup would be the top military officer: the chairman of the joint chiefs of staff or otherwise one or more than one of the chiefs of staff simply because the entire military must obey him or them. It is conceivable, though, that someone subordinated to them would dare doing what the top officers would not do. However daring is not enough, persuasion must be part of the effort and no one has better odds of being highly persuasive than the top military officer or in close second place one or more than one of the chiefs of staff.

 

Going back to option number 1; whether or not the US military is institutionalized as an independent part of the federal structure it would be required to assign an officer as the overseer of the free State, since no active officer, such as the chairman, could do two jobs (military and overseer) and that brings up complicating factors which could help understand how radical, in fact, is the founders’ idea.  The officer assigned to the new position must stand beyond and above the constitution, not to be free to commit crimes or improprieties, of course, but to fulfill the stringent details of the civic mandate set by the founders within the second amendment’s intent.

 

As if that position was not extreme enough, the officer must also be beyond (but not above) the chairman of the joint chiefs of staff since in its regular official functions the US military is part of the federal government. This means should the overseer be subordinate to the chairman of the joint chiefs of staff, he would somehow be under government command or control.

 

Technically speaking, the chairman of the joint chiefs of staff controls the military along with chiefs of the military branches within the active force of the US Constitution. In extra-constitutional fashion they could also stage a coup which, at least theoretically, must be obeyed by all military personnel if ordered, but once an overseer is assigned to the federal structure, the extra-constitutional power to stage a coup would move to the overseer, clearly separating the overseer’s power from that of any section of the federal government.

 

In other words, after seated in the new federal position, the overseer could discuss and debate the possibility of a coup with the chiefs of staff but would already have been assigned (by the military) to make the final decision on a coup, and should he order it, the entire military would obey him rather than the chairman or the joint chiefs of staff.

 

While the US Constitution is active, the chiefs of staff including the chairman would be the top military officers of all standard or ordinary military matters with no interference from the overseer, unless the overseer actually decided to stage a coup and went ahead to suspend the constitution. In that case, he would become the top officer all military personnel needed obey. The rationale for such new chain of command structure would be to avoid a public impression of the overseer being a federal government or military employee. He would not be an institutional employee but rather an independent power in direct representation of—and regarded as an employee of— the American people.

 

The overseer’s appointment and assignment would be a lifetime job with mandatory retirement at a certain age, at which time a new overseer would be assigned by the US military institution. For example, if the position calls for an officer (who is in active duty or retired) between the ages of 45 and 75 years old at the time of office initiation, with mandatory retirement at age 80, a full term of office could be as short as five years or as long as thirty-five years. The overseer would undergo periodical psychological tests (the details of which are beyond my knowledge); failure in such would be grounds for dismissal. Such safety measures are the weakest part of my proposal since a tyranny could fabricate failure to dismiss whoever it sees as a threat.

 

For someone observing and investigating American society, other personal requirements for the overseer would be adequate higher education, suitable active military performance, and impeccable personal character; qualities judged and determined by the US military institution. Public speaking skills would also be important since the role would include informing and persuading Congress and the federal judiciary about aspects of the state of the Union; how things stand and how things should be.

 

If the overseer becomes corrupt, stands trial for serious violations of the public trust extended to him by the American people, and is convicted, only the death penalty would be fair punishment for his abuse of power. Capital punishment, in this particular case, could be regarded as a necessary balance to match the unprecedent privilege of being above and beyond the US Constitution.

 

If an overseer needs to be put on trial, a new set of challenges would emerge, beginning with what judging authority would be in charge of the proceedings. My opinion is that it would be improper for a military court to judge a military appointee. I believe the US Supreme Court, although it is a section of the federal structure, is independent enough a body to judge someone positioned beyond the US Constitution, for alleged crimes against the free State. The independence of Supreme Court justices is based on their lifetime appointments just as the overseer would be. 

 

Although the Supreme Court is the most appropriate institution to judge matters concerning the free State in relation to a special, extra-constitutional matter which  constitutes a new addition to the standard constitutional issues of the nation (more so than any US federal circuit court), in being an advisory federal body (advising on US constitutional matters), it has no authority to impose punishment, therefore, the issue of imposing and enforcing punishment of a convicted overseer must go back to the US military institution.

 

For a case in which an overseer must stand trial, I propose the US Supreme Court should conduct the trial proceedings and declare the overseer guilty or not guilty. If the Supreme Court verdict is guilty, the US military institution would impose and enforce the punishment. This special arrangement limits the Supreme Court responsibility to judgment alone and requires the US military to punish its own appointee. I believe the punishment for treason against the free State should be death, but the decision would be for the US military institution to make.

 

The challenges do not end with assigning the US Supreme court and the US military institution for those two responsibilities; judging and punishing are important steps to create a suitable framework, but who would supervise the overseer, investigate, and charge him with any alleged crimes committed? Well, any crime included in state or federal codes already has extensive investigative and enforcing agencies, and the overseer would not be an exception. If he committed such crimes, he would lose his overseer job but the reason would not be treason. The key question then, is what would be a crime against the free State not included in those codes that the overseer could commit?

 

This matter could take extensive discussion and debate, but here is one example of what could land the overseer in a court trial. Perhaps the overseer observes something in society which should not be, investigates, and gets ready to present an argument about what he believes must be solved or corrected. However, before he makes it public, someone comes to visit him and explains that his upcoming public address would have serious negative consequences on some interest, business, industry, etcetera; a lot of people could be hurt, even the overseer’s family, but it all could be avoided if he cancels such address and rethinks the whole thing. If he were to reconsider, he could reap significant benefits.

 

I believe a military officer who has managed a successful career could be better prepared to confront such types of situations, pressures, insinuations and the like than someone who has not endured considerable discipline. If the overseer goes the wrong way, it would reflect on the military that assigned him and they would decide what punishment is deserved. I also believe the overseer should not be spied on, at the most a system of inspections of his office and work could be arranged periodically, but who would do such inspection is a matter for discussion and debate. 

 

The difficulty in deciding who would oversee the overseer comes from what the founders would likely say today, “A domestic tyranny could emerge that would have Congress, the judiciary, and the military in its pocket; therefore the overseer; as the only one able to stop it, should not stand under heavy control of any of them”. Also perhaps, “if the overseer cannot be trusted, there would no longer be any reason to have a republic, it would be all over.” Keep in mind the words attributed to Benjamin Franklin, which strongly resonate today: “A republic, if you can keep it.”      

                            

The reason to make the changes I have described—from the military being under civilian control to its independence, or at the very least its assignment of an independent overseer—is owed exclusively to what is needed to abide by the founders’ original second amendment concept after the US military developed into an official national military (“army” in the general, traditional denomination.) Remember, the initial change began when technology applied to military matters made the original people’s militia obsolete.                    

 

When a military coup is staged, the military officers involved are forced to either make political decisions or assign civilians to make those decisions, and that situation is taken as an accidental one, just because a coup was needed.

 

A different situation would be to give the military a political place in the federal structure and as strange as it may sound to Americans, who are educated to see the civilian control of the military as a “constitutional” requirement, I believe there is no alternative than such an “innovative” change.

 

Having reported the way things stand to the founders, I would ask them how they would feel about a limited time dictatorship led by a council of select citizens entrusted to restore the free State as much as realistically possible to somehow resemble their original design.

 

I suspect they would be interested but would want to know how such would take place. Well, there seems to be only one way. If the US military assumes a new role in substitution of inauthentic “militias” which no longer have a chance to protect the free State, the vicious circle of faulty democracy eventually leading to citizens voting for candidates that opt to run even if disliking them, would come to an end.

 

No one but the US military could make that decision, and it would not be fair for anyone to pressure it to do so since the change from just obeying civilians orders to making political decisions is a great change requiring more virtue from high-tier military officers than from any other government official. I don’t believe I am contradicting myself in what I expressed in my piece “The Population Problem and the Presidential Election.” Citizens could ask for a limited time dictatorship signaling the way they feel about the state of the Union, but any “pressure” would come straight from the founders. 

 

Having said all those things, I believe a military coup in the US is only a matter of time, and when it happens, it may be beneficial if the innovative idea I have presented in my comments about a new independent status for the US military in the US federal structure is taken into careful consideration.

 

García-González

December 26, 2020