The Marque and Reprisal Clause as Textual Evidence of Private Heavy-Arms Ownership at the Founding
Jonathan Goldstein, an adjunct professor at the University of Pennsylvania Law School, has produced a thorough examination of Congress’s power to “grant letters of marque and reprisal, and make rules concerning captures on land and water,” U.S. Constitution, Art. I, § 8, cl. 11. Historically, this authority meant that private citizens could hold cannons and ships and could wage war at sea against enemies approved by Congress.
“You couldn’t buy a cannon when the Second Amendment was passed,” President Joe Biden quipped in 2022. In fact, you could, and you still can. Cannons were never restricted until their inclusion in the 1968 revision of the National Firearms Act, which taxes and requires registration of “destructive devices”—weapons that expel a projectile through an explosive or other propellant, with a bore over one-half inch in diameter, excluding sporting arms.
As the Court notes in 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 appeared in the original Constitution before the Second Amendment, and it carries its own intriguing historical arc.
For fresh perspectives on the obscure Marque and Reprisal Clause, consult Professor Goldstein’s recent article “The Militia of the Sea: The Marque and Reprisal Clause as Textual Evidence of Private Heavy-Arms Ownership at the Founding.” Abstract follows:
Courts and litigants increasingly argue that the Second Amendment reaches only the weapons one person can carry. The Constitution answers that objection twice, within a single Article.
Article I, § 8, cl. 11 authorizes Congress to “grant letters of marque and reprisal, and make rules concerning captures on land and water.” This amounts to a license permitting a private citizen to wage war at sea from his own vessel, equipped with his own cannon, for profit. A license presupposes what it licenses. The Clause treats a privately owned, cannon-armed fleet as a given; nothing in the Constitution creates that fleet. A few lines later, Article I, § 10 forbids a state to “keep troops, or ships of war in time of peace” without Congress’s consent. The Framers asked a sovereign to request permission for a warship, not the shipowner to seek authorization from others.
Under Article I, Congress’s authority over private armed force at sea was limited to overseeing the commission of that private force for use by the United States. Congress did not grant permission for shipowners to arm their vessels with cannon. The Founders who ratified Article I in 1788 and the Second Amendment a few years later in 1791 did not appear troubled by the fact that private parties owned heavily armed ships. Indeed, they treated widespread private armament as a given, such that Congress’s primary concern was not the private possession of substantial armaments, but rather transforming that private ownership into a legitimate operation on behalf of the federal government itself.
With textual backing drawn from a documented record of roughly 1,700 Revolutionary-era privateering commissions—issued per voyage in the years before ratification—this article challenges the modern, categorical claim that heavy arms were never “arms.”
