A new scholarly article argues that the Marque and Reprisal Clause of Article I of the U.S. Constitution 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 Professor. J. Goldstein.
The article locates its constitutional argument in two clauses of Article I. The first, Article I, § 8, cl. 11, authorizes 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.
Professor. 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 organizing, and the Marque and Reprisal Clause proceeded accordingly.