A new scholarly article argues that the Marque and Reprisal Clause of Article I directly undermines the modern judicial claim that the Second Amendment extends only to weapons a single person can carry. The paper, published on SSRN in 2026, is the work of Prof. J. Goldstein and is titled ‘The Militia of the Sea: The Marque and Reprisal Clause as Textual Proof of Private Heavy-Arms Ownership at the Founding.’
The article locates its constitutional argument in two clauses of Article I. The first, Article I, § 8, cl. 11, authorises Congress to ‘grant letters of marque and reprisal, and make rules concerning captures on land and water.’ The second, Article I, § 10, forbids any state from keeping ‘ships of war in time of peace’ without congressional consent.
Prof. Goldstein’s reading of those two clauses is compact: a sovereign needed permission to keep a warship; a private shipowner did not. The Constitution, on this account, simply took cannon-armed private vessels as an existing feature of the world it was organising, and the Marque and Reprisal Clause proceeded accordingly.
What the Marque and Reprisal Clause Actually Authorised
The Georgetown Center for the Constitution summarises the clause’s scholarly history as concerning ‘the distinction between the public and private waging of war and the right of a sovereign nation to make decisions regarding that distinction.’ Under the clause, Georgetown Law’s Constitution Center notes, letters of marque were authorisations for privateers to use force against an enemy, whilst reprisal referred to the legally authorised seizure of foreign private property to redress a debt owed by that foreign government.
A Congressional Research Service Legal Sidebar (LSB11272, dated 26 February 2025) describes such letters as instruments permitting private citizens to seize enemy vessels along with their cargo and crew. The Supreme Court, the CRS sidebar notes, has described the power to issue those letters as an inherent feature of sovereignty that is national in character, with ‘no restrictions imposed’ on Congress’s authority in this area.
A companion sidebar (LSB11273, also dated 26 February 2025) records that Congress exercised the power during the War of 1812, authorising private shipowners to assist the war effort by targeting enemy vessels. The second CRS sidebar also notes a structural difference between the Articles of Confederation and the Constitution: the Articles prohibited states from issuing letters of marque in peacetime but allowed them to do so after Congress declared war; the Constitution, by contrast, vested the power exclusively in Congress with no equivalent state carve-out.
The Privateer Record and Its Constitutional Weight
Prof. Goldstein draws on a documented record of roughly 1,700 Revolutionary-era privateering commissions, issued per voyage in the years before the Constitution was ratified, to support the argument that heavy arms were treated as ‘arms’ within the ordinary meaning of that word at the founding.
The scale of that private armed fleet was considerable. Records held by the Mystic Seaport Museum indicate that around 800 American privateer vessels were commissioned during the Revolutionary War, a figure that counts ships rather than individual voyage commissions. A further 365 commissions were issued during the undeclared naval conflict with France in approximately 1798 to 1800, and more than 500 vessels sailed against the British during the War of 1812.
The Continental Congress issued those commissions on a standardised printed form, with blank spaces for the vessel’s name, owners, master, tonnage, guns, and crew. Completed forms were signed by the President of Congress and distributed to the United Colonies, which took on primary responsibility for regulating their own privateer fleets. The mechanics of that process underscore Prof. Goldstein’s textual point: Congress was not authorising the cannon. It was commissioning the ship that already had one.
The article’s structural argument follows from that observation. Congress received, under Article I, the power to transform existing private armed force into a lawful instrument of federal war-fighting. It did not receive, and apparently did not need, the power to permit private parties to arm their vessels in the first place. Whether courts engaged in Second Amendment litigation accept that reading of the founding-era record is a question the article is likely to press, given the frequency with which federal judges have invoked a one-weapon-one-person framing when applying the historical tradition test set out in New York State Rifle and Pistol Association v. Bruen.
