S055567, Opinion — State v. Briney

505
Argued and submitted September 17, decision of Court of Appeals reversed;
judgment of circuit court reversed, and case remanded to circuit court for further
proceedings December 31, 2008
STATE OF OREGON,
Respondent on Review,
v.
CHASON LYNN BRINEY,
Petitioner on Review.
(CC041329M; CA A128505; SC S055567)
200 P3d 550
CJS, Weapons§ 6.
En Banc
On review from the Court of Appeals.*
* Appeal from Josephine County Circuit Court, Pat Wolke, Judge. 216 Or App
337, 172 P3d 305 (2007).

506 	State v. Briney
Garrett 	A. 	Richardson, 	Multnomah 	Defenders, 	Inc.,
Portland, argued the cause and filed the petition for peti-
tioner on review.
Ryan Kahn, Assistant Attorney General, Salem, argued
the cause for respondent on review. With him on the brief
were Hardy Myers, Attorney General, and Mary H. Williams,
Solicitor General.
DE MUNIZ, C. J.
The decision of the Court of Appeals is reversed. The judg-
ment 	of the 	circuit court is reversed, 	and the case is
remanded to the circuit court for further proceedings.

Cite as 345 Or 	507
DE MUNIZ, C. J.
This case concerns the meaning of the statutory def-
inition of "firearm," ORS 166.210(3), as that term is used in
describing the crime of carrying a concealed firearm under
ORS 166.250(1)(a), set out post. Defendant was charged with
carrying a concealed firearm, a pistol, in violation of ORS
166.250(1)(a). In his trial to the court, defendant argued that,
because the pistol had a broken firing pin at the time he car-
ried it, it was not "readily capable of use as a weapon" and
therefore was not within the statutory definition of a firearm.
In response, the trial court ruled that, although the evidence
showed that a replacement firing pin was not immediately
available to defendant, his pistol nevertheless fell within the
statutory definition of a firearm. The trial court convicted
defendant of unlawfully carrying a concealed firearm and the
Court of Appeals affirmed that judgment without written
opinion. State v. Briney, 216 Or App 337, 172 P3d 305 (2007).
We allowed defendant's petition for review and now, for the
reasons that follow, reverse the judgment of the trial court
and the decision of the Court of Appeals. We conclude that, in
this case, defendant's pistol was not "readily capable of use as
a weapon" and, therefore, was not a concealed firearm pro-
hibited under ORS 166.250(1)(a).
The 	facts 	are 	undisputed. 	In 	September 	2004,
Grants Pass Police Officers responded to a report of a possi-
ble forced entry into a motor vehicle. At the scene of the
reported incident, Officer Peil encountered defendant and
two other suspects. Peil asked defendant for consent to
search his person. Defendant immediately responded, "All I
have is this," and produced a small pistol from his pocket.
Defendant gave the pistol to Peil, who identified it as a Raven
Arms .25 caliber semi-automatic pistol. The pistol belongs to
a group of weapons colloquially known as "Saturday Night
Specials," cheaply made handguns typically costing less than
$100. The officer examined it, discovering a single round
positioned in the chamber and additional rounds in the
magazine.
Defendant informed the officer that the pistol lacked
a working firing pin, rendering it incapable of firing despite
the fact that it was loaded. Peil nevertheless cited defendant

508 	State v. Briney
for 	carrying 	a 	concealed 	firearm 	in 	violation 	of ORS
166.250(1)(a).
Before trial, an Oregon State Police criminalist con-
firmed defendant's claim that the weapon did not have a
working firing pin and could not be fired without one. The cri-
minalist, however, successfully fired the weapon after obtain-
ing and installing a functional firing pin. The parties stipu-
lated that the installation process, once the pin was obtained,
would take only a matter of minutes for someone familiar
with firearms.
The parties also stipulated that a firing pin that
could render the pistol operational was not available at any
Grants Pass area gun store at the time of defendant's arrest,
but could have been obtained by mail order or over the
Internet at a cost of between $5 and $15. Overnight delivery
was generally available for an increased fee.
At trial, both parties focused on whether defendant's
inoperative pistol was nevertheless "readily capable of use as
a weapon," a necessary characteristic for the pistol to be con-
sidered a "firearm" as defined in ORS 166.210(3).1 Defendant
argued that, because a replacement firing pin for the pistol
was at least an overnight delivery interval away, the pistol
could not "readily" be used as a weapon and therefore fell out-
side the statutory definition of a "firearm." In response, the
state cited several Oregon cases for the proposition that the
dispositive factor in determining whether a weapon was
"readily capable" of use was not the length of time needed to
procure parts to make the weapon operational, but rather the
ease with which such a conversion could occur. 2
1 The text of that definition is set out in full below. At the time of trial, the def-
inition of"firearm" was numbered as ORS 166.210(2). The statute was amended in
2007 and the definition renumbered as ORS 166.210(3), but its text remained
unchanged. Or Laws 2007, ch 368, § L For ease of reference, this opinion uses the
current citation throughout.
2 The state supported its argument with Court of Appeals decisions. See, e.g.,
Olson u. Lampert, 185 Or App 477, 60 P3d 544 (2002), rev den, 355 Or 391 (2003)
(holding that a rifle lacking a bolt was "readily capable of use as a weapon," despite
the fact that the defendant did not have the bolt and the person holding it refused
to relinquish possession); State v. Goltz, 169 Or App 619, 10 P3d 955 (2000), rev
den, 331Or583 (2001) (holding that a rational jury could conclude that a disassem-
bled nine-millimeter handgun, with all of the parts on site, could be considered
readily capable of being used as a weapon); State v. Gortmaker, 60 Or App 723, 655

Cite as 345 Or 505 (2008) 	509
The trial court agreed with the state, concluding
that the Court of Appeals decisions on which the state had
relied clearly established that defendant's pistol fell within
the statutory definition of a "firearm." In a letter opinion, the
trial court wrote:
"There is no question that this gun was capable of being
a firearm. It was a firearm absent a firing pin. With the
addition of the firing pin, it would have worked as a normal
gun would.
" 'Capable' is modified by the word 'readily' in the stat-
ute. The State reads this modification as 'easily capable'
and the defense as 'quickly capable.' Absent case law,
the Court would agree with the Defense; but in Olson v.
Lampert, 185 Or App 477, the Court of Appeals does not
concern itself with how quickly or easily defendant could
have obtained a bolt to insert into the rifle * * *. Applying
this reasoning to our case, it does not depend on how long
and difficult it would have been to obtain and install a firing
pin to make this gun operable."
(Emphasis in original.)
The trial court subsequently found defendant guilty
of unlawfully carrying a "firearm concealed upon the person,"
ORS 166.250(1)(a), a Class A misdemeanor. As noted, defen-
dant appealed that judgment and the Court of Appeals
affirmed it without opinion. We allowed defendant's petition
for review to construe the meaning of the term "firearm" in
ORS 166.250(1)(a), and more specifically, the meaning of the
phrase "readily capable of use as a weapon" as it is used to
define a "firearm" in ORS 166.210(3).
On review, defendant reiterates his argument that
the pistol he carried was not "readily capable of use as a
weapon" because (1) it did not have a functional firing pin,
and (2) the fastest a replacement could be procured was by
overnight delivery following a mail order or Internet pur-
chase. In essence, defendant's position is that, to unlawfully
carry a concealed firearm in violation of ORS 166.250(1)(a),
P2d 575 (1982), affd on other grounds, 295 Or 505, 668 P2d 354 (1983) (holding
that a pistol that lacked its firing mechanism, which could be replaced in three to
four minutes by a gunsmith at a cost of $6, was "readily capable of use as a
weapon").

510 	State v. Briney
the concealed weapon must either be fully operational at the
time that it is being unlawfully carried, or promptly capable
of being made so at that time. As set out in greater detail
below, the state, for its part, argues that, in this case, "readily
capable" should not be read to encompass the sense of imme-
diacy for which defendant argues.
We begin with the text and context of the statutes at
issue here using the familiar methodology set out in PGE v.
Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d
1143 (1993). Defendant was convicted of violating ORS
166.250(1)(a), which provides, in part:
"Except as otherwise provided in this section or ORS
166.260, 166.270, 166.274, 166.291, 166.292, or 166.410 to
166.470, a person commits the crime of unlawful possession
of a firearm if the person knowingly:
"(a) 	Carries any firearm concealed upon the person[.]" 3
"Firearm," in turn, is defined in ORS 166.210:
"As used in ORS 166.250 to 166.270, 166.291 to 166.295
and 166.410 to 166.470:
"* * * * *
"(3) 	'Firearm' means a weapon, by whatever name
known, which is designed to expel a projectile by the action
of powder and which is readily capable of use as a weapon."
(Emphasis added.)
The statute's first requirement that the pistol be
designed to expel a projectile is not at issue here. Defendant's
pistol, despite being cheaply manufactured and distributed,
functions like any other firearm, and the parties have stipu-
lated to that fact. The parties also agree that, for purposes of
this case, the phrase "use as a weapon" refers to only the
employment of a firearm to fire bullets. 4
:i The provision does not apply to persons "licensed under ORS 166.291 and
166.292 to carry a concealed handgun." ORS 166.260(1)(h).
4 At least one Court of Appeals decision has read "use as a weapon" in an
extremely broad manner, concluding that it means use as any kind of weapon, such
as a small club. See State u. Hash, 34 Or App 281, 285, 578 P2d 482 (1978), rev den,
284 Or 1 (1978) (so stating). Here, however, the state notes that, "for the purposes
of this case, this court need evaluate 'firearm' only in terms of its capability to be
used as a gun." (Emphasis in original.)

Cite as 345 Or 505 (2008) 	511
The statute's second requirement, however, pres-
ents an issue of first impression for this court: In considering
the crime of unlawfully carrying a concealed firearm, when is
a firearm "readily capable of use as a weapon"? Because the
legislature has not defined "readily" or "capable" as those
terms are used in ORS 166.210(3), and because those words
are words of common usage, we give them their plain, ordi-
nary meaning. PGE, 317 Or at 611. The most common defi-
nition of "capable" in use today is "constituted, situated, or
characterized as 	susceptible or open to being affected."
Webster's Third New Int'! Dictionary 330 (unabridged ed
2002). A pistol that lacks a working firing pin is nevertheless
"susceptible or open to being affected" by the relatively minor
repair of reinstalling a new firing pin that would allow the
pistol to function as designed; thus such a pistol is "capable"
of use as a weapon.
Here, however, as the trial court recognized, the
word "readily" is an adverb that modifies the adjective "capa-
ble." Under the dictionary definition that is most applicable
in this case, "readily" means:
"a: with prompt willingness: without hesitating, quibbling,
or delaying: with alacrity: WILLINGLY* * * b: with fairly
quick efficiency: without needless loss of time: reasonably
fast: SPEEDILY * * * c : with a fair degree of ease : without
much difficulty: with facility: EASILY***."
Id. at 1889.
Defendant argues from that definition that his pistol
was not "readily" capable of use as a weapon because it could
not, with reasonable speed, be made capable of firing. The
state responds that the term "readily" does not mean "imme-
diately" and contrasts the phrases "readily capable" and
"presently capable" as they are used in ORS 161.015 to sup-
port its argument. The state notes that the legislature has
defined "dangerous weapon" in ORS 161.015(1) as
"any weapon, device, instrument, material or substance
which under the 	circumstances in which it is 	used,
attempted to be used or threatened to be used, is readily
capable of causing death or serious physical injury."

512 	State v. Briney
(Emphasis added.) At the same time, the state continues, the
legislature has defined "deadly weapon" in ORS 161.015(2)
as
"any instrument, article or substance specifically designed
for and presently capable of causing death or serious physi-
cal injury."
(Emphasis added.) In a nutshell, the state contends that,
because "readily capable" and "presently capable" are applied
in different ways within the same statute, the two phrases
must have different meanings. Under the state's theory,
because "presently" implies immediacy, "readily" must con-
template a less immediate, more flexible standard. The state
therefore argues that the term should be read to imply rela-
tive promptness and ease, a condition that was present in
this case because the replacement firing pin-although not
immediately at hand-was nevertheless (1) generally avail-
able, (2) relatively cheap, and (3) could be installed quickly
once procured.
We agree that "readily" does not necessarily mean
"immediately," but in our view, the resolution of this case
does not turn on that unremarkable proposition. Although
the term "readily" may not mean presently or immediately, it
encompasses a temporal quality as it used in ORS 166.210(3).
Many of the qualifiers used within the dictionary definition,
e.g., "with fairly quick efficiency," "without needless loss of
time," and "reasonably fast" (emphases added), suggest as
much. However, our conclusion in that regard does not, with-
out more, establish that the legislature intended the term's
elasticity to encompass the 12- to 24-hour delivery interval
that necessarily would have had to have elapsed here before
the pistol could have been made capable of use as a weapon.
Consequently, we next examine, as context for the
statutes at issue here, earlier versions of Oregon's concealed
firearms laws. See Crocker and Crocker, 332 Or 42, 49, 22
P3d 759 (2001) (under PGE paradigm, court considers earlier
versions of statutes at first level of analysis); Krieger v. Just,
319 Or 328, 336, 876 P2d 754 (1994) (PGE paradigm includes
earlier versions of same statute as part of statute's context).

Cite as 345 Or 505 (2008) 	513
By 1868, Oregon statutes had established a relatively unfet-
tered right (at least for white males) to "have, hold, and keep"
a variety of firearms for personal use and protection:
"Every white male citizen of this state above the age of
sixteen years shall he entitled to have, hold, and keep, for
his own use and defense, the following fire-arms, to wit:
Either or any one of the following-named guns, and one
revolving pistol; a rifle, shot-gun (double or single barrel),
yager, or musket, the same to be exempt from execution, in
all cases, under the laws of Oregon."
General Laws of Oregon 1868, § 1.5 In 1885, the legislature
enacted the state's first general prohibition against carrying
concealed weapons. Specifically included among a long list of
prohibited items was "any revolver, pistol, or other firearm,"
the use of which could injure the person or property of
another:
"It shall be unlawful for any person to carry concealed
about his person in any manner whatever any revolver, pis-
tol, or other firearm, or any knife (other than an ordinary
pocketknife), or any dirk or dagger, slung-shot, or metal
knuckles, or any instrument by the use of which injury
could be inflicted upon the person or property of any other
person."
General Laws of Oregon 1885, § 1.
In 1925, the legislature amended its blanket ban on
concealed weapons to allow concealed firearms to be carried
with the proper license. At the same time, a provision was
added to clarify that a firearm carried openly in a belt holster
was not "concealed":
"Except as otherwise provided in this act, it shall be
unlawful for any person within this state to carry concealed
upon his person or within any vehicle which is under his
control or direction any pistol, revolver or other firearm
capable of being concealed upon the person without having
a license to carry such firearm, as hereinafter provided in
Yager is defined, in part, as an obsolete term for a "short-barrelled [sic] large-
bore rifle of a type formerly popular in the South and Southwest." A Dictionary of
Americanisms On Historical Principles 1895 (1951).

514 	State v. Briney
section 8 hereof * * * Firearms carried openly in belt hol-
sters shall not be deemed to be concealed within the meaning
of the section."
General Laws of Oregon 1925, ch 260, § 5 (emphasis added). 6
In creating that regulatory framework, however, the 1925
legislature did not expressly define the term "firearm." It was
not until 1977 that the legislature enacted the definition that
is the subject of our discussion here.
In 1977, the legislature's definition of"firearm" was
set out in ORS 166.210. Except for its references to different
kinds of gun powder, that definition was identical to the pres-
ent definition. Today, definitions for 11 other terms in addi-
tion to "firearm" have significantly expanded the content of
ORS 166.210. In 1977, however, the statute provided a much
smaller set of definitions for use in delineating firearm-
related offenses and penalties. As relevant here, the defini-
tional sections of ORS 166.210 (1977) provided:
"As used in ORS 166.230, 166.250 to 166.270, 166.280,
166.290 and 166.410 to 166.470:
"(1) 	'Firearm' means a weapon, by whatever name
known, which is designed to expel a projectile by the action
of black powder or smokeless powder and which is readily
capable of use as a weapon.
"(2) 	'Pistol,' 'revolver,' and 'firearms capable of being
concealed upon the person,' apply to and include all fire-
arms having a barrel less than 12 inches in length."
Although ORS 166.210(1) defined the term "firearm"
broadly for purposes of the applicable 1977 statutes, the term
itself had a limited application. At the time, when the legis-
lature used "firearm" in a particular provision, the word was
consistently coupled with the phrase "capable of being con-
cealed upon the person" and generally accompanied by ref-
erences to pistols and revolvers-weapons that, by design,
were usually more concealable than other firearms, such as
6 A virtually identical provision remains in effect today as ORS 166.250(3):
"Firearms carried openly in belt holsters are not concealed within the meaning of
[ORS 166.250]."

Cite as 345 Or 	515
rifles. Under ORS 166.250(1) (1977), for example, the unlaw-
ful concealment of a firearm on one's person was addressed in
specific terms to
"any person who possesses or has in his possession any
machine gun, or carries concealed upon his person or within
any vehicle which is under his control or direction any pis-
tol, revolver or other firearm capable of being concealed
upon the per.<;on, without having a license to carry such a
firearm[.]"
(Emphasis added.) The same was true of the statute prohib-
iting convicted persons from possessing firearms:
"Any person who has been convicted of a felony under
the law of this state or any other state, or who has been con-
victed of a felony under the laws of the Government of the
United States, who owns, or has in his possession or under
his custody or control any pistol, revolver, or other firearms
capable of being concealed upon the person, or machine gun,
commits the crime of exconvict [sic] in possession of a
firearm."
ORS 166.270(1) (1977) (emphasis added). See also ORS
166.230 (1977) (increasing punishment for felonies commit-
ted with any "pistol, revolver, machine gun or other firearm
capable of being concealed upon the person"); ORS 166.420
(1977) (misdemeanor for gun dealers to sell or transfer a "pis-
tol, revolver, or other firearm, of a size capable of being con-
cealed upon the person" without recording date of sale and
manufacturer's number or identifying marks); ORS 166.440
(1977) (misdemeanor for unlicensed persons to sell "any pis-
tol, revolver or other firearm capable of being concealed upon
the person"); ORS 166.470 (1977) (misdemeanor for know-
ingly selling or transferring "any pistol, revolver or other fire-
arm capable of being concealed upon the person" to persons
prohibited from lawfully possessing such weapons).
The foregoing statutory history helps to identify the
legislative policy that underlies the prohibition against car-
rying a concealed firearm in this state. When the legislature
first defined "firearm," its primary focus, demonstrated by its
use of the term in ORS chapter 166, was on the actual or
potential concealment of such weapons. However, since 1925,
the provisions enacted by the legislature to criminalize the

516 	State v. Briney
carrying of a concealed weapon have all made clear that
"[f]irearms carried openly in belt holsters are not concealed
within the meaning of this section." ORS 166.250(3). Had the
legislature intended the statutory prohibition against carry-
ing concealed firearms to act as a general restriction on the
ability to carry handguns or to serve as the ultimate protec-
tion against the use of such weapons, it would not have cre-
ated, in the same provisions, an exception for firearms car-
ried openly in a holster. The fact that it did, however, evinces
a different policy rationale, one aimed at providing notice to
those who may come into contact with an individual carrying
a firearm.
That rationale-ensuring the 	public's 	ability 	to
assess whether a person is presently in possession of a
weapon-is the legislative purpose often identified with the
enactment of weapons concealment statutes around the
country. The Iowa Supreme Court, for example, has stated:
"We 	discern the policy underlying the prohibition
against concealed weapons to be based on the protection of
those persons who may come into contact with a weapon
bearer. If a weapon is not concealed, one may take notice of
the weapon and its owner and govern oneself accordingly.
No such opportunity for cautious behavior or self-preservation
exists for one encountering a bearer of a concealed weapon."
State of Iowa v. Rodney Newsom, 563 NW2d 618, 619-20
(1997). See also James Dorelus v. State of Florida, 74 7 So 2d
368, 370 (1999) (Florida prohibition against carrying con-
cealed weapons aimed at preventing those with weapons
from taking "undue advantage" of unsuspecting adversaries
who are not aware the person is carrying a weapon).
Given what we believe to be the legislative policy
underlying the enactment of the concealed weapons statutes
in Oregon, we think that, in order for a firearm to be "readily
capable of use as a 	weapon" for 	the purposes of ORS
166.250(1)(a), 	the legislature intended that 	the firearm
either be operational or promptly able to be made so at the
time that an individual is alleged to be unlawfully carrying it
concealed. 7
7 We note that, although the definition of "firearm" has not changed substan-
tively in over 30 years, the substance and focus of the statutes to which it applies

Cite as 345 Or 505 (2008) 	517
The record here establishes that a firing pin neces-
sary to make the pistol operational was unavailable locally,
and was at least an overnight delivery interval away, approx-
imately 12 to 24 hours. Because the pistol could not promptly
be made to fire at the time defendant was alleged to have
unlawfully carried it, defendant was not guilty of carrying a
concealed firearm in violation of ORS 166.250(1)(a), and the
trial court should have granted defendant's motion for judg-
ment of acquittal.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
have. See, e.g., ORS 166.270 (amended 1989) (Class C felony for a convicted felon to
possess, have custody of, or control any "firearm"); ORS 166.429 (amended 1989)
(Class B felony to ship, transport, receive, sell or otherwise furnishes any "firearm"
to another knowing that the weapon will be used in furtherance of a felony); ORS
166.450 (amended 1989) (unlawful to intentionally alter, remove, or obliterate
identification number of any "firearm" for an unlawful purpose).