Penn Law Professor Argues Second Amendment Covers More Than Handheld Weapons
“letters of marque and reprisal”
I have seen many people on Twitter/X make the same argument over the years.
The College Fix reports:
Second Amendment could include owning cannons, heavily armed ships: UPenn law professor
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.
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Comments
That is how my middle school Civics teacher explained the second amendment back in the early 70’s. He was also a Marine in Viet Nam
Yes, but that doesn’t prove there’s a right to own cannon. The clause is perfectly consistent with the proposition that cannon are not protected, and Congress could ban them if it liked, but in fact it didn’t ban them, and thus ship owners would be expected to have them. I’m not saying that’s the case, but the mere existence of the letters of marque clause doesn’t rule it out.
It doesn’t matter what the letters of marque section says, any more than it matters what the commerce clause says.
The second amendment is an AMENDMENT. That means it overrides anything written before it that doesn’t agree with it.
The second amendment says that the Right to Keep and Bear Arms shall not be infringed. So if there was anything else in the constitution that infringed on the Right to Keep and Bear Arms, wake up and use the Wite-out, Bubba.
Woke logic is that the 2nd Amendment only guarantees your right to retain your left arm and your right arm. Firearms are prohibited doubleplus ungood things whose possession is restricted to the military and other party approved people.
Yes, but that’s not the argument we’re discussing here. The topic is specifically an argument that the letters of marque clause proves that cannon are included in the RKBA. And that argument simply doesn’t work. Cannon may or may not be included; the clause works fine either way.
I would say they’re included simply because I see no reason to exclude them. But if someone does come up with one then perhaps they’re not included after all.
I’ve heard the argument that they’re excluded because they can’t be borne, but I don’t think that works either. The right is to keep and/or bear; the right to bear is not limited to arms that can be kept, nor is the right to keep limited to arms that can be borne.
Also, “bear” needn’t be taken so literally; someone driving a vehicle with a mounted gun can easily be said to be “bearing” it. Likewise someone sailing a ship with mounted guns.
Oh, so some half-informed Ivy League prof says something so let’s all talk about it? There were private military units, including artillery units, in the US thru the Civil War era. Some were purely voluntary associations but many others were incorporated by states as nonprofit corporations. Cf. my Liberty Lost, pp. 275-78.
Did you even bother reading the post before commenting on it?!
The 2nd Amendment is a check on the power of the federal government. It means that the private militia can be maintained as a check on the power of the federal army.
If you accept that principle, it is untenable to say that the 2A only protects guns for personal self-defense. It’s purpose is protect ‘weapons of war.’