A .75-caliber Brown Bess flintlock musket, the single-shot weapon carried by British soldiers in 1776, hurls a lead ball at roughly 1,000 feet per second. Under federal law and the statutes of most U.S. states, that lethal historical artifact falls almost entirely outside modern firearms regulations, along with many replica and percussion-cap firearms. Second Amendment scholar and gun-rights attorney Dave Hardy said he expects most judges would be surprised to learn that even convicted felons in many jurisdictions can legally purchase and fire the weapons today.
The regulatory carve-out originates in the congressional debate surrounding the Gun Control Act of 1968. The late Sen. John Goodwin Tower, a Texas Republican, argued that flintlocks and similar antique or replica guns should not be regulated, stating the policy was necessary “to relieve an unnecessarily burdensome problem for serious collectors of antique firearms and for historians and museums.” The resulting federal provision defines an antique as any matchlock, flintlock, percussion-cap or similar ignition weapon manufactured in or before 1898, provided it has not been modified to fire modern ammunition. During a 2000 National Rifle Association event, the late actor Charlton Heston famously hoisted a similar flintlock into the air and declared Democrats would have to take it from his “cold, dead hands” — a regulation that never materialized for the weapon class.
Military historians and collectors describe the resulting enforcement landscape as a patchwork. At least three states — Hawaii, Ohio and North Dakota — classify a smoothbore musket under the same statutory framework as an AR-15 or AK-47. U.S. Army officer and reenactor Jason Monhollen said that comparison is like “comparing apples and oranges,” noting the impracticality of a single-shot weapon for mass violence. Conversely, other jurisdictions maintain minimal oversight; Montana and Wisconsin carry vague or indirect statutory references to antique firearms, while military historian Patrick Luther, who lives in New York, noted that acquiring black powder for a Civil War-era rifle feels no different to him than buying a t-shirt. Federal law also does not exclude antique firearms from location-based restrictions, according to Austin Gunderson, counsel for the North Dakota Legislative Council.
Legislatures have tightened restrictions in direct response to specific violent crimes. Maryland enacted Shadé’s Law in 2019 after a convicted sex offender killed his former girlfriend with a .44-caliber cap-and-ball revolver purchased online. Montgomery County State’s Attorney John McCarthy told reporters at the time that the historical weapon “fired like a 2017 manufactured modern handgun that was capable of lethal force.” The Maryland statute now bars individuals convicted of certain violent crimes from possessing such weapons, though states like West Virginia continue to carve out exceptions for persons subject to active protective orders. Wake County, North Carolina, separately prohibits the firing of any barreled weapon capable of discharging projectiles, regardless of its antique status.
State-level attempts to close modern firearms loopholes have produced unintended regulatory spillover for the antique-weapon community. New Jersey’s attorney general recently issued guidance after a new state law targeting untraceable “ghost guns” appeared to mandate serial numbers for all firearms, including antiques and air guns. New York’s 2022 gun-law expansion required background checks for antique transfers and banned firearms of any kind from “sensitive places” such as parks and museum sites, prompting a later carve-out for lawful historical reenactments and theatrical productions. The legislative tightening has left out-of-state reenactors worried their muskets might be confiscated when crossing state lines.
Despite the legal carve-outs, reenactors emphasize that the weapons demand strict safety protocols. Justin Costantino, a graduate student and adjutant for the Long Island Companies of the 3rd New York Regiment, joked that if New York State Police want to charge him with weapons possession while he wears a cocked hat and carries a Charleville musket, they should call the New York Post rather than his lawyer. He noted that when spectators at reenactments tell children the weapons are not real, he feels compelled to correct the record. “It’s not really loaded, but it is really a weapon,” Costantino said. “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.”