Marque and Reprisal
How a Key Passage in Article I Provides Evidence for the Constitutionality of Individual Gun Rights
History can be inconvenient for ideologues, regardless of party stripe or worldview. Progressives, despite their label, have trouble noting the legitimate progress made between the sins and social ills of the past compared with general freedoms experienced today. Conservatives, on the other hand, may at times dismiss or too easily diminish the difficult history involved in America’s past and how it may continue to impact the present. Much to the chagrin of my partisan friends (and they all know this to be the case), I blame members on both ends of the political spectrum for too often putting their ideology first and their understanding of history second (at best).
One of the most emotionally-charged and partisan-motivated debates in American discourse is the battle over gun rights. On the extremes you have those who deny that any regulation should exist versus those who do not believe that individual gun ownership should be constitutionally recognized and protected. Most Americans, as with many issues, fall somewhere in-between on this debate, and yet (as, again, with many other issues) it is the voices at the extremes that get the most attention and suck the air out of any sort of possibility for a moderate, reasonably-calibrated middle ground.
This discussion, however, is not so much about moderation but historical literacy. Historians must, first and foremost, be willing to present the historical data accurately and dispassionately, and be willing to let the facts speak for themselves. Once the facts are presented, then interested parties can wrestle with the realities to (hopefully) find common ground with fellow citizens and neighbors. Thus, common ground can only be achieved once everyone understands the information and has faced it with open eyes and open minds.
Historians must, first and foremost, be willing to present the historical data accurately and dispassionately, and be willing to let the facts speak for themselves.
There is similarly a problem with the mutation of terms that carry different academic and historical definitions from what they come to mean to the general population. For example, many conservatives malign certain “liberals” for their gun-grabbing advocacy, and these self-proclaimed liberals accuse conservatives of not caring about the very real ramifications of gun violence, particularly regarding children. This example, however, reveals that the two sides of the debate are already speaking past each other because they are utilizing terms that do not comport with their actual, historical meanings. This may at first seem merely like an issue of semantics, but it is far more serious than that. The result is a lack of coherence or intelligibility within the debate before it even begins.
Liberalism, in its historical sense, is a philosophy which advocates for the maximization of individual human liberty. With this in mind, support for an individual right to bear arms is not a conservative position, but a liberal one. Conversely, attacks on individual gun rights are not liberal in any logical sense, but are instead quite illiberal. These terms matter, as do their proper definitions, and when they are abused and misused with such cavalier recklessness, no understanding of the history or appreciation for different perspectives can be apprehended.
Both progressives and conservatives are at fault for misusing the term liberal. As easy and warranted as it may be to blame conservative talking heads like Sean Hannity for using the term as a pejorative for a left-winger, political progressives are also guilty of misusing the word liberal. Sometime during and after the Great Depression and World War II, and particularly after the 1960s, leftist politicians began abandoning the term and resurrected the term progressive for themselves, which has remained the self-ascribed label for many decades now. The term progressive is itself a strange label to proudly adopt, considering that the first progressive president was Republican Theodore Roosevelt (Roosevelt also founded what history has dubbed the Bull-Moose Party, though the party was in fact named The Progressive Party), and many progressive policies during the progressive era (approximately the beginning of the twentieth century through the 1920s) were decidedly illiberal as well, including everything from alcohol prohibition to the dark and disturbing eugenics movement. It was also originally the progressive position to advocate for the imperial presidency (a feature now prominent in both major political parties). Thus, both the left and the right, Republicans and Democrats, in the past and today, contribute to the confusing and inaccurate use of the terms liberal and liberalism. When something like Second Amendment rights are debated, this confusion proves to be a serious problem.
Both progressives and conservatives are at fault for misusing the term liberal.
The fact is that a pro-gun, pro-individual rights position regarding the Second Amendment is a liberal position, because it honors the maximum liberty afforded to the individual. Indeed, nothing may be more liberal than the principle that a citizen has a fundamental right to self-preservation and the preservation of one’s home and family, even against one’s government (the intellectual relationship between the concept of such rights and the American Founding is discussed further in my book, Rights Reign Supreme: An Intellectual History of Judicial Review and the Supreme Court). When it comes to the Second Amendment, conservatives hold the liberal position. This can be confusing to people who do not understand what these terms mean and do not understand the history. All the more reason to convince people on both sides of the issue and all along the political spectrum to understand this point. Regarding the Second Amendment, the values that conservatives are seeking to conserve are quintessentially liberal values. This is a fact that self-proclaimed liberals who hold a different view on gun rights must contend with. The facts presented below are not intended to change the mind of those with an anti-gun perspective, though that may happen for some. The point here is to present the factual, historical evidence. If one wants to argue against the Second Amendment and an individual right to bear arms, one has every right to do so. The fact will remain, however, that history tells a very different story from what many anti-Second Amendment advocates suggest.
So, what about the history? It has been asserted by anti-Second Amendment activists that the Founders could not have foreseen modern gun technology, nor did they believe in an individual right to gun ownership.
Both of these assertions are absurd and incorrect.
Being children of the philosophical Enlightenment, which—among other things—included belief in the development of the arts and sciences—in technological innovation—of course the Founders knew that gun technology would continue to advance. To not possess this understanding would be one incredible blind-spot within their worldview. They were witnessing technological advancement all around them in their own time and possessed an understanding that innovation would continue to advance in their absence. The ridiculousness of the “they could not have foreseen” argument is thus self-evident. Perhaps they could not have foreseen nuclear missiles and satellite-assisted military tech, but they could certainly predict that guns would become more accurate, would expend more rounds at a faster rate, and would become more lethal. They were learned men who certainly had a sense of a more technological future, including matters related to weaponry.
As for the denial of an individual right of gun ownership, which is often couched in the argument that the Second Amendment right merely asserts a collective right through the use of a militia, some have even asserted that in the modern era, the militia is essentially the Armed Forces of the U.S. Government because it holds this collective right. The problem with this assertion is that the militia was a community-oriented entity and separate from government. It would be called on by state governments, particularly during the Revolution, but it was—by design—a separate body. It makes no sense that a body defined by its separateness from government, to provide security for one’s local community in times of duress, could then be asserted as a modern wing of the American Empire. Add to this the concern the citizens of the early United States held over the preservation of their rights that they demanded these protections be enshrined in the Bill of Rights in 1791. How could an amendment that was motivated by a fear of a potential tyrannical government be legitimately mutated into a governmental entity like the National Guard or some other aspect of the military? Tracing the connection from one to the other makes no comprehensible sense.
What about the individual right versus a collective right? One need only to look at the writings of the Founders themselves not only for advocacy, but celebration of the individual right of gun ownership. Thomas Jefferson, for example, recommended that one take a rifle on one’s walks, to exercise one’s right of self-preservation while simultaneously exercising one’s body.
In a letter to his nephew, Peter Carr, in 1785, Jefferson shared his belief regarding this preferable form of exercise:
“I advise the gun. While this gives a moderate exercise to the body, it gives boldness, enterprize, and independance to the mind… Let your gun therefore be the constant companion of your walks."1
This practice would be inconceivable if Jefferson and others in his time did not believe in an individual right of gun ownership.
“I advise the gun [to carry when taking walks]. While this gives a moderate exercise to the body, it gives boldness, enterprize, and independance to the mind… Let your gun therefore be the constant companion of your walks."
-Thomas Jefferson, 1785
Even so, some assert that the Founders were only thinking of muskets at the time of Second Amendment ratification. Though assertions that they could not foresee where the technology would lead has been refuted above, arguments nevertheless remain by some who claim that it was only late eighteenth century muskets that were intended for individual rights and private ownership. Can we know, by looking at the relevant history, that this too is not true?
Yes.
We can know that the Founders had far more than muskets in mind by looking at the Constitution itself, in a little-discussed clause in Article I.
Article I, Section 8, Clause 11 of the United States Constitution states that Congress shall have the power to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”2
The phrase here that many are unlikely to be familiar with is “Letters of Marque and Reprisal.”
Letters of Marque and Reprisal was a power exercised by governments to deputize those in private trade to work on behalf of the government for a designated period to address certain controversies and conflicts, by which the privateer would be rewarded financially in some way. Letters of Marque and Reprisal were used routinely by European governments in the late eighteenth century and was a power deliberately adopted by the United States during the same era. Privateers aided the United States during numerous conflicts. One noteworthy example was the War of 1812 (sometimes referred to by historians as the Second War of Independence), where privateers actually outnumbered the number of persons and ships in the U.S. Navy (a navy was created during the John Adams administration but was not expanded to any significant degree until after the second war with the British in the early decades of the nineteenth century, though Thomas Jefferson did commission a fleet of new gunboats out of fear of a coming war). Around the time President James Madison asked Congress to declare war against Great Britain in 1812, he also pursued the project of acquiring privateers through Letters of Marque and Reprisal.
According to American Battlefield Trust, an education organization whose purpose is to “inspire appreciation of America, its history, and its promise of liberty through an understanding of the wars fought on its soil” and who assert that “history education is the foundation of good citizenship”:
“From the beginning of the War of 1812 Congress did not want to encourage a naval war with Great Britain as they believed it to be expensive and would ultimately fail against Britain’s notoriously strong naval force. Thus, Congress adopted privateering as their main naval strategy, while maintaining a small navy. By the end of the war, Congress commissioned over 525 private ships to be privateers, which captured thousands of British vessels and millions of dollars in prizes. In the War of 1812, privateering was crucial to alleviating the trade imbalance by providing the United States with much needed goods, both for civilians and for the military.”3
The American privateers who aided the U.S. Navy against the British in the War of 1812 were not given arms and munitions upon being deputized by the U.S. Government. The federal government was actively using all the firepower it had at its disposal. Instead, privateers were valuable to the war effort because they already had such arms, and not merely muskets, but cannons, which they housed on their privately-owned vessels. Quite the opposite of the Founders not intending private citizens to own anything other than muskets for private use and self-defense, the federal government in fact relied heavily on private citizens who already were in possession of weaponry and transport vehicles far more powerful. In short, Letters of Marque and Reprisal demonstrate the critical history of individual ownership of not just muskets and other guns, but cannons and weapons of war, and the U.S. Government benefited from those who privately owned these materials by deputizing them into service in exchange for financial gain (often through claims of capture on the high seas).
The American privateers who aided the U.S. Navy against the British in the War of 1812 were not given arms and munitions upon being deputized by the U.S. Government. The federal government was actively using all the firepower it had at its disposal. Instead, privateers were valuable to the war effort because they already had such arms, and not merely muskets, but cannons, which they housed on their privately-owned vessels.
This historical evidence is not to be construed as to mean that no debate should exist regarding gun rights or their scope, or for the right to own other potentially dangerous material. Few would argue, for example, that one has an individual right to procure weapons-grade plutonium. The point is that those on the anti-Second Amendment side of the issue do not have history on their side, as they so tirelessly claim. American History is solidly pro-Second Amendment. This is a fact, and attempts to distort history will not and do not help. If one wants to make a legitimate argument to end or curb such rights, then it must be done in a way that does not avoid the very real history of gun (and other) rights used for protection and preservation of self, family, home, and country.
Considering this context, conservatives should stop using liberal as a pejorative, when they are themselves the liberal camp concerning the Second Amendment. Self-proclaimed liberals also ought to stop using the term liberals for themselves if their position is decidedly illiberal.
If one wants to make arguments against an individual right to bear arms, then one should do so. Such assertions, however, are separate from the relevant history. If the United States government reached a stalemate with Britain in its second war of independence due to assistance by private individuals owning cannons and other weapons of war, framing the issue around the historical use of muskets is either the result of disingenuousness or ignorance.
To borrow from John Adams, facts are stubborn things. American history is on the side of individual ownership of arms and the principle of self-preservation. Any legitimate debate will need to be over a matter of degrees rather than any extreme solution in either direction. The data matters. The history matters, and it should always inform the way forward.
[James M. Masnov is a writer, historian, and lecturer. His book, Rights Reign Supreme: An Intellectual History of Judicial Review and the Supreme Court, published by McFarland Books, is available here. His first book, History Killers and Other Essays by an Intellectual Historian, is available here.]
Thomas Jefferson to Peter Carr, 19 August 1785, Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/01-08-02-0319. [Original source: The Papers of Thomas Jefferson, vol. 8, 25 February–31 October 1785, ed. Julian P. Boyd. Princeton: Princeton University Press, 1953, pp. 405–408.
U.S. Constitution, Article I, Section 8, Clause 11. Library of Congress. constitution.congress.gov
“The Militia of the Sea: Privateering in the American Revolution and the War of 1812,” American Battlefield Trust, https://www.battlefields.org/learn/articles/militia-sea.