HALIFAX, N.C. — A .75-caliber Brown Bess flintlock musket, identical to those wielded by British soldiers during the Revolutionary War, can propel a lead ball at roughly 1,000 feet per second when loaded with 165 grains of black powder.
The destructive potential is significant, yet these historic weapons face virtually no regulatory oversight under current gun laws.
The reason lies in how federal and state legislation defines firearms. Many historical and reproduction weapons fall outside the technical classification of regulated firearms, allowing even individuals with felony convictions to legally possess them in most jurisdictions.
“I suspect the average judge would be surprised to find that out,” notes Second Amendment scholar and gun-rights attorney Dave Hardy, who owns two Civil War-era long guns himself.
The regulatory gap traces back to a memorable 2000 National Rifle Association gathering where late actor Charlton Heston raised a flintlock rifle — the single-shot weapon that secured American independence and remained common decades after the Second Amendment’s creation — declaring Democrats would have to pry it “from my cold, dead hands.”
His concerns proved unnecessary.
When lawmakers crafted the Gun Control Act of 1968, Sen. John Goodwin Tower pushed for exemptions covering flintlocks and similar historical weapons.
The Texas Republican justified the provision as necessary “to relieve an unnecessarily burdensome problem for serious collectors of antique firearms and for historians and museums.” He contended that uniform regulation would unfairly impact collectible items “which have little, if any, practical use as a firearm in the modern connotation.”
Current federal law categorizes weapons as antique if they feature “a matchlock, flintlock, percussion cap, or similar type of ignition system” and were produced “in or before 1898” — provided they haven’t been altered to accommodate contemporary ammunition. This typically covers muzzle-loading weapons using black powder or substitutes, plus some early cartridge firearms.
The exemption even extends to cannon ownership and operation.
While most states mirror this federal language either exactly or through reference, military historian Patrick Luther describes the regulatory landscape as “a patchwork.”
“I live in NY (New York) and bought a civil war musket,” Luther, a Marine veteran with the website milsurpia.com, explained via email. “It was very similar to buying a regular firearm. Buying the blackpowder for the rifle felt not much different than buying a T-shirt.”
Three states — Hawaii, Ohio and North Dakota — regulate smoothbore muskets identically to AK-47 or AR-15 rifles. Reenactor Jason Monhollen, a U.S. Army officer, calls this “comparing apples and oranges.”
“It seems silly to put restriction on something that would be such a terrible weapon if you wanted to, you know, kill people,” explains Monhollen, who portrays a private carrying a French Charleville musket with the 2nd North Carolina Regiment. “There’s just much better things. You can kill more people quickly with a car than you can with a musket.”
However, these weapons retain lethal capability.
Maryland revised its laws following an incident where a convicted sex offender used a six-shot, .44-caliber cap and ball revolver purchased online to kill his former girlfriend.
“It may have loaded like an 1851 weapon, but it fired like a 2017 manufactured modern handgun that was capable of lethal force,” Montgomery County State’s Attorney John McCarthy explained to media.
Shadé’s Law, enacted in 2019, now prevents individuals convicted of specific violent offenses from purchasing or possessing such weapons. Yet many states continue allowing convicted felons access to these firearms; West Virginia only restricts those subject to active protective orders.
Certain states maintain unclear or ambiguous regulations.
Montana’s statutes reference “antique or replica arms” within codes governing state-manufactured firearms and ammunition, but provide no definition for these weapons.
Wisconsin adopts federal definitions but only references them in legislation addressing “look-alike” firearms.
Meanwhile, numerous local rules, including Wake County, North Carolina’s ordinance, ban discharging any “barreled weapon capable of discharging projectiles.” Many communities also prohibit brandishing even toy weapons.
“Federal law does not exclude antique firearms from location-based restrictions,” Austin Gunderson, counsel for the North Dakota Legislative Council, clarified in an email.
Efforts to strengthen firearms legislation sometimes create unexpected complications.
New Jersey’s attorney general recently issued clarification when new ghost gun legislation appeared to mandate serial numbers for all firearms — including antiques and air guns.
New York’s 2022 gun law strengthening required background checks for antique firearm transfers and purchases, while banning all firearms from designated “sensitive places” including parks and museum sites — precisely where reenactors typically perform.
Lawmakers later created an exception for individuals “lawfully engaged in historical reenactments, educational programming involving historical weapons of warfare, or motion picture or theatrical productions.” Despite this, out-of-state reenactors remain concerned about potential confiscation at the George Washington Bridge, according to Justin Costantino, adjutant of the Long Island Companies of the 3rd New York Regiment.
“If the New York State Police department wants to charge me with weapons possession while I’m wearing a cocked hat and carrying around a Charleville ’66,” says Costantino, a history graduate student, “then please, don’t call my lawyer. Call the New York Post!”
Still, Costantino dislikes hearing mothers at reenactments reassure children by saying, “Oh, no. Don’t worry, sweetie. It’s not real.”
“It’s not really loaded, but it is really a weapon,” he emphasizes. “It’s really gunpowder. And if you stand close to it, you’ll feel the kind of breath of hot air … They’re still things that we have to take very seriously, and you have to be safe with.”
