Jonathan Goldstein, Adjunct Professor at University of Pennsylvania Law School, has published a comprehensive analysis of the power of Congress to "grant letters of marque and reprisal, and make rules concerning captures on land and water," U.S. Const., Art. I, § 8, cl. 11. Historically, this meant that private citizens could possess cannon and ships and could wage war at sea on enemies approved by Congress.
"You couldn't buy a cannon when the Second Amendment was passed," President Joe Biden quipped in 2022. Well, actually you could, and you still can. Cannon were never restricted until included in the revision of the National Firearms Act in 1968, which taxes and requires registration of "destructive devices," defined as weapons that expel a projectile by the action of an explosive or other propellant, the barrel of which has a bore of more than one-half inch in diameter, excluding sporting arms.
According to Heller, "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." The Marque and Reprisal Clause was adopted in the original Constitution prior to ratification of the Second Amendment, and it has an interesting history of its own.
