Jonathan Goldstein (University of Pennsylvania Carey Law School) has posted The Militia of the Sea: The Marque and Reprisal Clause as Textual Proof of Private Heavy-Arms Ownership at the Founding on SSRN. Here is 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 power Congress received over private armed force at sea was a power over the belligerent employment of that force on behalf of the United States. Congress imposed no general federal license on the shipowner’s arming of his ship. 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.”
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