Make privateering great again — along with cannons and other heavy weapons, according to a law professor with the reddest blood this side of various Founding Fathers.
Jonathan Goldstein, adjunct professor at University of Pennsylvania Law School, just published The Militia of the Sea: The Marque and Reprisal Clause as Textual Proof of Private Heavy-Arms Ownership at the Founding*, taking aim at the notion that the right to keep and bear arms stops at weapons individuals can actually carry.
But Goldstein argues that the Constitution's Marque and Reprisal Clause implies a broader right than even most originalist Supreme Court justices might recognize.
More on that in a sec.
I first stumbled across Goldstein's paper in a Reason article by Stephen (no relation) Halbrook, who referred to the Marque and Reprisal Clause as "obscure." No offense to Mr. Halbrook, but none other than the Blogfaddah himself, Glenn Reynolds, argued for Congressional action against al Qaeda using the Marque and Reprisal Clause in the weeks and months after the 9/11 terror attacks.
"During the Revolutionary War," John C. Yoo wrote for Heritage, "the Continental Congress granted letters of marque and reprisal. These privateers seized $10 million of British goods, harming British commerce and hastening the colonists’ eventual victory." A scholar quoted by Woo pointed out that "the harm to British commerce was one of the most significant sources of internal dissent in Britain concerning continuation of the war."
And Another Thing: For historical reference, my backup headline was "Second Amendment Could Include Cannons and Warships BECAUSE AMERICA."
Neither the Islamic Republic nor the Houthis have anything we're interested in taking per se, but Jules Lobel wrote in Covert War and Congressional Authority 40 years ago that such letters "could constitute state-authorized private warfare short of declared war."
And when we're actually in a shooting war? Why shouldn't Congress authorize willing (and well-armed) civilians to take action on the nation's behalf?
Which brings us back to Goldstein. While I don't have full access to his paper, the abstract notes that "Courts and litigants increasingly say the Second Amendment reaches only the weapons one person can carry," but that "The Constitution refutes that twice, in a single Article."
More:
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.
TL;DR: The Congressional power to grant letters of marque and reprisal rests on the premise that civilians are entitled to heavy weapons and warships.
This was so self-evident to those "primitive" minds of the American Enlightenment "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."
Praise the Lord and pass the 155mm shells.
You want the Straight of Hormuz reopened and kept that way? I've got two words for you: Give the Cajun Navy $100 million to arm themselves, a Letter of Marque and a few postdated pardons from President Donald Trump, and set them loose on the problem to solve as they see fit.
(The pardons are just in case some rogue prosecutor and woke judge decide to go after our privateers in court.)
The result?
Goodbye, four-dollar gas; hello, Strait of America.
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