A musket not a firearm? The answer depends on how the law defines “firearm”
In North Carolina, a Brown Bess flintlock musket from the era of the American Revolution is described as capable of launching a lead ball at roughly 1,000 feet (305 meters) per second with 165 grains of black powder in the barrel. Even so, the federal legal framework and much of state law can treat many antique and replica weapons as outside what statutes call “firearms,” creating a legal distinction that collectors and reenactors say can be confusing—and that critics say can undercut public-safety goals.
The federal approach traces to the Gun Control Act of 1968, during which Sen. John Goodwin Tower argued that flintlocks and other antique or replica guns should be exempt from regulation. Tower said the aim was “to relieve an unnecessarily burdensome problem” for collectors, historians and museums, arguing that treating all weapons the same would unfairly target items with “little, if any, practical use as a firearm in the modern connotation.”
Under the provision, an “antique” includes weapons “with a matchlock, flintlock, percussion cap, or similar type of ignition system” made “in or before 1898,” as long as they have not been modified to fire modern ammunition. The description generally covers muzzleloaders using black powder or black powder substitutes, though some early cartridge guns are also included.
Dave Hardy, a Second Amendment scholar and gun-rights attorney, told the Associated Press that “I suspect the average judge would be surprised to find that out,” in reference to the legal treatment of antique firearms. The story points to the way the public debate often focuses on modern firearms while exemptions hinge on technical definitions and manufacturing dates, not on whether a weapon can still cause lethal injury.
Other states, however, take different approaches. Military historian Patrick Luther said the result is “a patchwork.” Luther, a Marine veteran who runs the website milsurpia.com, said he lives in New York and bought a Civil War musket that felt similar to buying other items, including that buying black powder for the rifle “felt not much different than buying a T-shirt.” He described states adopting language that tracks the federal approach, but with enough variation that what is treated as antique in one place can be regulated more like a modern firearm elsewhere.
At least three states—Hawaii, Ohio and North Dakota—treat a smoothbore musket the same as an AK-47 or AR-15, according to the AP report, while others follow the federal definition more closely. Reenactor Jason Monhollen, an officer in the U.S. Army, said the comparison is “comparing apples and oranges,” and argued that a musket is such a “terrible weapon if you wanted to, you know, kill people” that the modern assault-rifle analogy does not fit.
Monhollen also emphasized that, despite differences in performance, the weapons remain lethal. The AP report contrasts the “not really loaded” perception sometimes voiced at reenactments with the reality that those weapons still fire gunpowder and can be dangerous at close range.
Critics of broad antique exemptions point to cases where older-style weapons have been used in recent crimes. Maryland changed its law after a convicted sex offender killed his ex-girlfriend with a six-shot, .44-caliber cap and ball revolver purchased on the internet. Montgomery County State’s Attorney John McCarthy told reporters at the time that “It may have loaded like an 1851 weapon, but it fired like a 2017 manufactured modern handgun that was capable of lethal force,” describing the legal logic that drove the state’s Shadé’s Law, passed in 2019.
Even where states tighten restrictions for certain violent offenders, the AP report says many states still allow convicted felons to have antique firearms, with West Virginia making an exception for people under an active protective order. The story also highlights concerns that some rules are incomplete or unclear—for example, Montana law includes “antique or replica arms” without defining them, while Wisconsin uses the federal definition but only references it in a “look-alike” firearms law.
Local regulations can also apply even when federal law treats the weapons as antiques. Austin Gunderson, counsel for the North Dakota Legislative Council, said in an email that “Federal law does not exclude antique firearms from location-based restrictions.” The report notes that some local ordinances in North Carolina, for instance, prohibit the firing of any “barreled weapon capable of discharging projectiles,” and that even brandishing a toy gun can be prohibited in many jurisdictions.
The AP also describes how gun-law efforts aimed at one category can create unintended consequences for others. It cites New Jersey’s guidance after a law targeting ghost guns appeared to require all firearms—including antiques and even air guns—to have serial numbers, and it notes that New York in 2022 required background checks for transfers and purchases of antique guns and barred firearms of any kind from certain “sensitive places” such as parks and museum sites.
A later carve-out in New York’s law allowed activity for those “lawfully engaged in historical reenactments, educational programming involving historical weapons of warfare, or motion picture or theatrical productions.” But the report says reenactors outside the state worried their muskets could be seized when they travel, including concerns tied to events at major locations like the George Washington Bridge.