The Volokh Conspiracy
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Second Amendment Roundup: The Militia of the Sea
The Marque and Reprisal Clause as Textual Proof of Private Heavy-Arms Ownership at the Founding
Jonathan Goldstein, Adjunct Professor at University of Pennsylvania Law School, has published a comprehensive analysis of the power of Congress to "grant letters of marque and reprisal, and make rules concerning captures on land and water," U.S. Const., Art. I, § 8, cl. 11. Historically, this meant that private citizens could possess cannon and ships and could wage war at sea on enemies approved by Congress.
"You couldn't buy a cannon when the Second Amendment was passed," President Joe Biden quipped in 2022. Well, actually you could, and you still can. Cannon were never restricted until included in the revision of the National Firearms Act in 1968, which taxes and requires registration of "destructive devices," defined as weapons that expel a projectile by the action of an explosive or other propellant, the barrel of which has a bore of more than one-half inch in diameter, excluding sporting arms.
According to Heller, "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." The Marque and Reprisal Clause was adopted in the original Constitution prior to ratification of the Second Amendment, and it has an interesting history of its own.
For fresh insights into the obscure Marque and Reprisal Clause, see Prof. Goldstein's new article "The Militia of the Sea: The Marque and Reprisal Clause as Textual Proof of Private Heavy-Arms Ownership at the Founding." Here's the Abstract:
Courts and litigants increasingly say the Second Amendment reaches only the weapons one person can carry. The Constitution refutes that twice, in a single Article.
Article I, § 8, cl. 11 lets Congress "grant letters of marque and reprisal, and make rules concerning captures on land and water." That is a license to send a private citizen to war at sea in his own ship, with his own cannon, for profit. A license presupposes what it licenses. The Clause takes a privately owned, cannon-armed fleet as given; nothing in the Constitution creates it. Two clauses later, Article I, § 10 forbids a state to "keep troops, or ships of war in time of peace" without the consent of Congress. The Framers made a sovereign ask permission to keep a warship. They made the shipowner ask no one.
Under Article I, the only power over private armed force at sea that Congress received was power over the commissioning of that private force on behalf of the United States. Congress did not give permission for the ship owner to arm the ship with cannon. The Founders who ratified the Constitution's Article I in 1788 and the Second Amendment three years later in 1791 did not appear troubled that private parties owned heavily armed ships. Indeed, they took the widespread ownership of such heavily armed ships as a given, so much so that Congress principally concerned itself not with the private ownership of significant armaments, but rather with the transformation of that private ownership into a lawful use on behalf of the federal government itself.
With textual support from a documented record of roughly 1,700 Revolutionary-era privateering commissions — granted per voyage, in the years before the Constitution was ratified — this Article refutes the modern categorical claim that heavy arms were never "arms."
Facts Only
* Jonathan Goldstein published an analysis on the Marque and Reprisal Clause.
* Article I, Section 8, Clause 11 grants Congress power to grant letters of marque and reprisal and make rules concerning captures on land and water.
* The author asserts that this clause implies private citizens could possess cannon and ships for waging war at sea.
* Cannon were not restricted until the National Firearms Act of 1968, which regulates "destructive devices."
* Heller argues the Second Amendment extends to instruments constituting bearable arms, even those not existing at the founding.
* The Marque and Reprisal Clause predates the Second Amendment's ratification.
* Article I, Section 10 restricts states from keeping troops or ships of war in peacetime without Congressional consent.
* Congress’s power over private armed forces at sea was limited to commissioning private forces for the federal government.
* Approximately 1,700 Revolutionary-era privateering commissions existed before the Constitution was ratified.
Executive Summary
The historical context of the Second Amendment and private heavy-arms ownership is framed by the Marque and Reprisal Clause in Article I, Section 8, Clause 11 of the Constitution. This clause grants Congress the power to grant letters of marque and reprisal and establish rules for captures on land and water. The analysis suggests that this clause implies the existence of a privately owned, cannon-armed fleet capable of waging war at sea, suggesting that private citizens could possess heavy arms prior to the Second Amendment's ratification.
The text posits that the Founders treated the widespread ownership of heavily armed ships as a given, focusing Congress’s power on regulating the transformation of private ownership into lawful state action rather than controlling the initial possession of armaments. This historical context is used to challenge modern interpretations that restrict heavy arms exclusively to individual carry. The discussion highlights a tension between historical textual evidence and contemporary legal claims regarding private firearm ownership.
Full Take
The core tension lies between historical textual interpretation and modern categorical legal claims regarding arms ownership. The argument reframes the constitutional discussion from a focus on individual armament to a focus on state authority over private military assets at sea. The implication is that the Founders' understanding of private heavy-arms ownership was broader than subsequent interpretations suggest, viewing it as a prerequisite for understanding Congress’s regulatory powers rather than a separate matter of individual right. This forces an examination of whether current restrictions reflect original intent or later legal accretion.
The pattern observed suggests a persistent attempt to isolate specific rights (like individual carry) while ignoring the foundational context provided by related constitutional clauses. The narrative attempts to establish that if private ownership existed prior to the Second Amendment, then the historical record concerning maritime warfare—evidenced by privateering commissions—supports this pre-existing reality. This resistance to integrating historical evidence of broad ownership into modern debates reflects a systemic desire to control the scope of rights through selective textual focus.
The implication for human agency is that cognitive sovereignty requires recognizing the full context: the shift in focus from maritime rights to individual arms implies a deliberate historical bifurcation. The cost is an incomplete understanding of how constitutional language functions historically versus presently, potentially leading to disputes based on contested foundational assumptions rather than established public record.
Bridge questions: How should subsequent legal interpretations weigh textual evidence that presupposes private ownership against modern statutory restrictions? What are the systemic consequences when historical precedent concerning broad ownership is subordinated to contemporary narrowly defined rights? What alternative frameworks for understanding constitutional history might yield a more robust consensus on shared historical realities?
Sentinel — Human
This text presents a focused, argumentative legal interpretation supported by specific textual claims, exhibiting the structure and density typical of scholarly or expert commentary rather than generalized synthetic prose.