BUZZ
If federal government hired privateers to fight pirates it implies private ownership of cannons and ships
A University of Pennsylvania law professor has taken a position even more originalist on the Second Amendment than the late Justice Antonin Scalia.
“Courts and litigants increasingly say the Second Amendment reaches only the weapons one person can carry,” Professor Jonathan Goldstein wrote recently in an academic paper. “The Constitution refutes that twice, in a single Article.”
(Reason first flagged the academic paper).
Goldstein cites the Constitution’s provisions for “letters of marque and reprisal” Congress’ ability to “make rules
concerning captures on land and water.”
If a law allows something to be licensed, that implies the item itself is legal, Goldstein argues.
He explains:
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.2 The Framers made a sovereign ask permission to keep a warship. They made the shipowner ask no one.
Goldstein clarifies that the Constitution does not provide for a right to own cannons necessarily. Rather, he argues that “ceiling” is not necessarily guns and other weapons that can be carried by a single individual.
The “founding-era tradition,” Goldstein writes, “refutes the notion that ‘arms’ carried an inherent, category-level ceiling excluding heavy or crew-served ordnance — the sources describe a right defined by its function (resistance to oppression, defense against standing armies), not by the weight of the weapon.”
Goldstein, an advisor to the National Rifle Association and Second Amendment attorney, says the “argumentative burden” should be different.
“If ‘arms’ is defined functionally and grounded in a natural right of resistance, the party claiming that a whole class of weapons sits outside the concept must point to something — text, history, or tradition — that puts it there,” he wrote.
The law professor says he first saw this argument made as an aside in a separate academic paper and then developed his argument from 1,700 issued letters of marque.
It’s a different stance than both President Joe Biden took and Justice Scalia.
“You couldn’t buy a cannon when, in fact, the Second Amendment passed,” Biden said in 2022. Even PolitiFact flagged that as false.
Scalia offered a similar assessment in 2012, saying the Second Amendment “does not apply to arms that cannot be hand-carried…It doesn’t apply to cannons.”
MORE: Princeton study links gun violence to start of deer season
