HALIFAX, N.C. (AP) — Equipped with 165 grains of black powder, the .75-caliber Brown Bess flintlock musket, reminiscent of those carried by British soldiers in 1776, can propel a lead ball at approximately 1,000 feet (305 meters) per second.
Consider the impact that can have on a human body. Yet, astonishingly, such weapons are largely exempt from gun regulations.
Why is this the case? Under federal and many state laws, antique or replica firearms often do not qualify as firearms in the legal sense. This allows even individuals with felony convictions to possess them in most jurisdictions.
“I think most judges would be quite surprised to learn this,” remarks Dave Hardy, a Second Amendment expert and gun rights lawyer, who is a proud owner of two long guns from the Civil War era.
In a memorable moment at a National Rifle Association gathering in 2000, the late actor Charlton Heston dramatically raised a flintlock musket — the single-shot firearm that played a crucial role in the American Revolution and remained prevalent long after the Second Amendment was debated — and declared that Democrats would have to pry it “from my cold, dead hands.”
He needn’t have worried.
A blast from the past
During debate over the Gun Control Act of 1968, Sen. John Goodwin Tower argued that flintlocks and many other antique or replica guns should be exempt from regulation.
The Texas Republican said it was needed “to relieve an unnecessarily burdensome problem for serious collectors of antique firearms and for historians and museums.” Treating all weapons the same, he argued, would unfairly target collector items “which have little, if any, practical use as a firearm in the modern connotation.”
The provision defines an antique as any weapon “with a matchlock, flintlock, percussion cap, or similar type of ignition system” manufactured “in or before 1898” — as long as it hasn’t been modified to fire modern ammunition. This generally means muzzleloaders that use black powder or a black powder substitute, though some early cartridge guns are included.
You can even own and fire a cannon.
Don’t go off half cocked
Most states have adopted that language either verbatim or by direct reference to the federal provision. But, as military historian Patrick Luther says, “it’s a patchwork.”
“I live in NY (New York) and bought a civil war musket,” Luther, a Marine veteran with the website milsurpia.com, said in an 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.”
At least three states — Hawaii, Ohio and North Dakota — treat a smoothbore musket the same as an AK-47 or AR-15. Reenactor Jason Monhollen, an officer in the U.S. Army, says that’s “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,” says Monhollen, who portrays a private and carries a French Charleville musket in 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.”
But these weapons are still deadly.
Not just a toy
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.
“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 told reporters at the time.
Shadé’s Law, passed in 2019, now prohibits people convicted of certain violent crimes from buying or possessing such weapons. But many states allow convicted felons to have these weapons; West Virginia makes an exception for people under an active protective order.
Some states’ laws are confusing or vague.
Montana law mentions “antique or replica arms” in a code regulating firearms and ammunition manufactured in the state. But nowhere in the code are those weapons defined.
Wisconsin uses the federal definition, but the only reference comes in a law regarding “look-alike” firearms.
And, of course, many local ordinances, like the one in Wake County, North Carolina, prohibit the firing of any “barreled weapon capable of discharging projectiles.” In many jurisdictions, it’s illegal to brandish even a toy gun at someone.
“Federal law does not exclude antique firearms from location-based restrictions,” Austin Gunderson, counsel for the North Dakota Legislative Council, said in an email.
Stray bullets
Sometimes, attempts to strengthen gun laws have had unintended consequences.
The attorney general of New Jersey, one of the 13 original states, recently had to offer guidance when a new law targeting ghost guns seemed to require all firearms — including antiques and even air guns — to have serial numbers.
When New York toughened its gun laws in 2022, it required background checks for transfers and purchases of antique guns, and barred firearms of any kind from certain “sensitive places” like parks and museum sites — just the kinds of places reenactors appear most.
An exemption was later carved out for people “lawfully engaged in historical reenactments, educational programming involving historical weapons of warfare, or motion picture or theatrical productions.” But that hasn’t stopped out-of-state reenactors from worrying their muskets will be confiscated at the George Washington Bridge, says 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 graduate student in history, “then please, don’t call my lawyer. Call the New York Post!”
Then again, Costantino hates to hear a mother at a reenactment tell her child, “Oh, no. Don’t worry, sweetie. It’s not real.”
“It’s not really loaded, but it is really a weapon,” he says. “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.”
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AP Writer Jack Dura in Bismarck, North Dakota, contributed to this report.