State v. Burris

339

Argued and submitted November 9, 2021, resubmitted January 25; decision of

Court of Appeals and judgment of circuit court affirmed October 20, 2022

STATE OF OREGON,

Respondent on Review,

v.

MICHAEL GARRETT BURRIS,

Petitioner on Review.

(CC 16CR75916) (CA A164853) (SC S068514)

518 P3d 891

Defendant failed to disclose a prior felony conviction while trying to purchase

a firearm. He was convicted of attempting to violate the misdemeanor offense

of unlawful possession of a firearm, under ORS 166.250(1)(c)(C). Defendant had

argued that he fell within an exception to the misdemeanor offense derived from

the felony offense of felon in possession of a firearm, under ORS 166.270(1). The

felony offense includes an exception for certain persons discharged from impris-

onment, parole, or probation at least 15 years earlier. ORS 166.270(4)(a). The stat-

ute defining the misdemeanor offense does not include a similar exception, but it

begins with a prefatory clause that cross-references other statutes, including the

statute defining the felony offense; specifically, it begins with the clause: “Except

as otherwise provided in * * * [ORS] 166.270 * * *.” ORS 166.250(1). Held: The mis-

demeanor offense of unlawful possession of a firearm, under ORS 166.250, does

not incorporate the 15-year exception that applies to the felony offense of felon in

possession of a firearm, under ORS 166.270.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

On review from the Court of Appeals.*

Sarah De La Cruz, Deputy Public Defender, Salem, argued

the cause and filed the briefs for petitioner on review. Also

on the briefs was Ernest G. Lannet, Chief Defender, Office

of Public Defense Services.

Jonathan N. Schildt, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan,

Nelson, Garrett, and DeHoog, Justices.**

______________

* Appeal from Washington County Circuit Court, Beth L. Roberts, Judge.

309 Or App 167, 481 P3d 319 (2021).

** Nakamoto, J., retired December 31, 2021, and did not participate in the

decision of this case.

340 State v. Burris

DUNCAN, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

Cite as 370 Or 339 (2022) 341

DUNCAN, J.

In this criminal case, we are asked to determine the

legal effect, if any, of a cross-reference between two statutes

that criminalize the same conduct: possession of a firearm

by a person previously convicted of a felony. The first statute,

ORS 166.270, defines the felony offense of felon in possession

of a firearm. The second statute, ORS 166.250, defines the

misdemeanor offense of unlawful possession of a firearm.

The statute defining the felony offense includes an exception

for certain persons discharged from imprisonment, parole,

or probation at least 15 years earlier. ORS 166.270(4)(a). The

statute defining the misdemeanor offense does not include a

similar exception, but it begins with a prefatory clause that

cross-references other statutes, including the statute defin-

ing the felony offense; specifically, it begins with the clause:

“Except as otherwise provided in * * * [ORS] 166.270 * * *.”

ORS 166.250(1). The question is whether the 15-year excep-

tion to the felony offense also applies to the misdemeanor

offense through the latter’s prefatory clause.

Defendant was convicted of attempting to commit

the misdemeanor offense. He argues that the 15-year excep-

tion to the felony offense applies equally to the misdemeanor

offense; he bases that argument on the misdemeanor offense’s

prefatory clause’s reference to ORS 166.270, which defines

the felony offense. The state argues otherwise; it contends

that the prefatory clause’s reference to ORS 166.270 has

no legal effect because, by its terms, the 15-year exception

to the felony offense applies only to the felony offense and

therefore does not create an exception to the misdemeanor

offense.

We agree with the state. Although we usually start

with the assumption that the legislature intended to give

legal effect to all the words of a statute, the historical devel-

opment of the statutes at issue in this case negates that

assumption. As we will explain, an examination of the evo-

lution of the two statutes shows that the prefatory clause’s

reference to ORS 166.270 is not evidence that the legislature

intended the exception to the felony offense to also apply to

the misdemeanor offense. Rather, it is an artifact of the con-

version to the Oregon Revised Statutes that had no legal

342 State v. Burris

effect for decades before the legislature amended the misde-

meanor offense in 1989 to prohibit a felon from possessing

a firearm. There is nothing suggesting that, in making that

amendment, the legislature intended to give new legal effect

to the prefatory clause. And reading the prefatory clause

as defendant suggests would create unintended conflicts

within the statutory scheme enacted by the legislature at

that time. We therefore reject defendant’s argument and

affirm the judgment of the trial court and the decision of

the Court of Appeals.

I. BACKGROUND

In 1996, defendant was convicted of a felony in

California. In 2016, defendant attempted to purchase a fire-

arm from a store in Oregon. The store clerk asked defendant

to complete a background check form that asked, among

other things, whether he had ever been convicted of a felony.

Defendant answered “no.” His application to purchase the

firearm was denied. Defendant later told an investigating

officer that he had answered “no” because he incorrectly had

thought that his 1996 felony conviction had been reduced to

a misdemeanor or expunged. The state charged defendant

with attempted unlawful possession of a firearm under ORS

166.250(1)(c)(C), which generally prohibits a person who has

been convicted of a felony from possessing a firearm, and

ORS 161.405(1), which criminalizes attempts to commit

crimes.1

Defendant argued before trial that the statute

defining the misdemeanor offense of unlawful possession of

a firearm, ORS 166.250(1), incorporates exceptions to the

felony offense of felon in possession of a firearm found in

ORS 166.270. Defendant grounded that argument on the

prefatory clause to ORS 166.250(1), which provides, “Except

as otherwise provided in * * * [ORS] 166.270 * * *.” Based on

that clause, defendant moved to present evidence that he

fell within an exception to ORS 166.270—specifically, the

exception set out in ORS 166.270(4)(a), which applies to per-

sons with a single felony conviction (which did not involve

1

Defendant was also charged with, and found guilty of, providing false infor-

mation in connection with the transfer of a firearm. ORS 166.416. Defendant does

not present independent grounds for challenging that conviction.

Cite as 370 Or 339 (2022) 343

criminal homicide or certain weapons) who have been dis-

charged from imprisonment, parole, or probation for that

offense for more than 15 years. ORS 166.270(4)(a). The trial

court rejected defendant’s argument that the misdemeanor

offense defined in ORS 166.250(1) incorporates the excep-

tions to the felony offense in ORS 166.270 and denied his

motion. A jury found defendant guilty of attempted unlaw-

ful possession of a firearm.

Defendant appealed his conviction and assigned

error to the trial court’s decision to preclude evidence that

he fell within an exception to ORS 166.270. The Court of

Appeals rejected defendant’s argument that the prefa-

tory clause in ORS 166.250(1) incorporates exceptions to

ORS 166.270. State v. Burris, 309 Or App 167, 481 P3d 319

(2021). According to the court, the prefatory clause in ORS

166.250(1) “simply preserves the viability of statutes that

include provisions different from ORS 166.250.” Id. at 171.

The court concluded that the inclusion of ORS 166.270 in

the list of exceptions to ORS 166.250 “means that[,] when

a person commits the offense of unlawful possession of a

firearm, ORS 166.250 is applicable, except when that per-

son is charged under ORS 166.270.” Id. at 172. As a result,

the Court of Appeals affirmed the trial court’s ruling.

Id. Defendant petitioned this court for review, which we

granted. State v. Burris, 368 Or 347, 489 P3d 540 (2021).

II. ANALYSIS

Defendant maintains that ORS 166.250(1), which

defines the offense of unlawful possession of a firearm,

incorporates the exceptions to ORS 166.270(1), which defines

the offense of felon in possession of a firearm. Whether ORS

166.250(1) incorporates the exceptions in ORS 166.270 is

a question of statutory construction. When interpreting a

statute, our task is to discern the legislature’s intent. ORS

174.020(1)(a). To do so, we consider the text and context of

the statute, as well as any helpful legislative history. State

v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).

A. The Statutes

ORS 166.250 defines the offense of unlawful posses-

sion of a firearm. It provides, “Except as otherwise provided

344 State v. Burris

in this section or ORS 166.260, 166.270, 166.273, 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:

(1) carries any firearm concealed upon the person; (2) pos-

sesses a handgun that is concealed and readily accessible

to the person within any vehicle; or (3) possesses a firearm

and falls within one of several different categories, includ-

ing persons who have been convicted of a felony.2

For its part, ORS 166.270 defines two crimes: felon

in possession of a firearm, ORS 166.270(1), and felon in pos-

session of a restricted weapon, ORS 166.270(2). Only ORS

166.270(1) is relevant in this case, and it provides:

“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 the person’s possession

2

In its entirety, ORS 166.250(1) provides:

“(1) Except as otherwise provided in this section or ORS 166.260, 166.270,

166.273, 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;

“(b) Possesses a handgun that is concealed and readily accessible to the

person within any vehicle; or

“(c) Possesses a firearm and:

“(A) Is under 18 years of age;

“(B)(i) While a minor, was found to be within the jurisdiction of the

juvenile court for having committed an act which, if committed by an adult,

would constitute a felony or a misdemeanor involving violence, as defined in

ORS 166.470; and

“(ii) Was discharged from the jurisdiction of the juvenile court within

four years prior to being charged under this section;

“(C) Has been convicted of a felony;

“(D) Was committed to the Oregon Health Authority under ORS 426.130;

“(E) Was found to be a person with mental illness and subject to an order

under ORS 426.130 that the person be prohibited from purchasing or pos-

sessing a firearm as a result of that mental illness;

“(F) Is presently subject to an order under ORS 426.133 prohibiting the

person from purchasing or possessing a firearm;

“(G) Has been found guilty except for insanity under ORS 161.295 of a

felony; or

“(H) The possession of the firearm by the person is prohibited under ORS

166.255.”

Cite as 370 Or 339 (2022) 345

or under the person’s custody or control any firearm com-

mits the crime of felon in possession of a firearm.”

ORS 166.270 includes exceptions to ORS 166.270(1).

Those exceptions are set out at ORS 166.270(4) and include

the exception at issue in this case for certain felons who

completed their sentences more than 15 years ago:

“(4) Subsection (1) of this section does not apply to any

person who has been:

“(a) Convicted of only one felony under the law of this

state or any other state, or who has been convicted of only

one felony under the laws of the United States, which fel-

ony did not involve criminal homicide, as defined in ORS

163.005, or the possession or use of a firearm or a weapon

having a blade that projects or swings into position by force

of a spring or by centrifugal force, and who has been dis-

charged from imprisonment, parole or probation for said

offense for a period of 15 years prior to the date of alleged

violation of subsection (1) of this section[.]”

Although both unlawful possession of a firearm

under ORS 166.250(1)(c)(C) and felon in possession of firearm

under ORS 166.270(1) prohibit felons from possessing fire-

arms, they carry different penalties. Unlawful possession of

a firearm under ORS 166.250(1) is a Class A misdemeanor,

while felon in possession of firearm under ORS 166.270(1) is

a Class C felony. ORS 166.250(5); ORS 166.270(5).

B. The Parties’ Arguments

In most cases involving statutory construction, the

parties’ dispute centers around how to give legal effect to

the words contained in a statute. In this case, however, the

parties’ dispute centers around whether to give legal effect

to the words of a statute—specifically, whether the inclusion

of ORS 166.270 in ORS 166.250(1)’s prefatory clause oper-

ates as a limit on the prohibitions in ORS 166.250.

The parties agree that the legal effect of the prefa-

tory clause—“Except as otherwise provided in”—is to indi-

cate that, where they conflict, the cross-referenced provisions

prevail over the prohibitions in ORS 166.250(1). Generally,

a cross-referenced provision conflicts with the prohibitions

in ORS 166.250(1) either if it authorizes conduct that would

346 State v. Burris

be otherwise prohibited by ORS 166.250(1) or if it limits the

prohibitions in ORS 166.250(1).

That understanding of “Except as otherwise pro-

vided in” is consistent with its most common usage and

demonstrated by the provisions cross-referenced in the

prefatory clause, other than ORS 166.270. For example,

the prefatory clause cross-references some provisions that

authorize conduct that would be otherwise prohibited by

ORS 166.250(1), such as ORS 166.291 and ORS 166.292,

which authorize a license holder to carry a concealed hand-

gun. The prefatory clause also references ORS 166.273 and

ORS 166.274, which provide opportunities for individuals

to petition for relief from certain bars on possessing a fire-

arm contained in ORS 166.250(1)(c). ORS 166.273(1)(a); ORS

166.274(1)(a).

Other provisions cross-referenced in the prefatory

clause limit the prohibitions in ORS 166.250(1). For exam-

ple, the prefatory clause references ORS 166.260, which con-

tains a list of individuals to whom the prohibitions in ORS

166.250 do not apply. And the prefatory clause references

a statutory series—ORS 166.410 to 166.470—containing

ORS 166.460, which provides that, subject to exceptions,

ORS 166.250 does not apply to “antique firearms.” ORS

166.460(1). Finally, the prefatory clause refers to other parts

of ORS 166.250, which limit the prohibitions in subsection

(1) as they apply to minors and to people within their place

of residence or place of business. See ORS 166.250(2)(a) - (b)

(describing limits).3

3

One of those limits refers to ORS 166.270. Specifically, ORS 166.250(2)(b)

treats a person’s home or place of business as a limited safe harbor from the unlaw-

ful possession prohibitions in ORS 166.250(1). However, people “within the excepted

classes proscribed by ORS 166.270 and subsection (1) of this section” may not take

advantage of that safe harbor and, thus, may violate ORS 166.250(1) based on

conduct that occurred within the person’s home or business. ORS 166.250(2)(b). A

version of that provision appears in the original act from 1925, which is described

further below. General Laws of Oregon 1925, ch 260, § 5.

According to defendant, the reference to ORS 166.270 in that safe harbor pro-

vision demonstrates that ORS 166.270 and its predecessors have long operated as

limits on ORS 166.250 and its predecessors. But defendant’s reliance on that safe

harbor provision is misplaced. In attempting to interpret the inclusion of ORS

166.270 in the prefatory clause to ORS 166.250(1), this case requires determining

whether ORS 166.270 operates as a limit on the prohibitions in ORS 166.250(1).

The reference to ORS 166.270 in ORS 166.250(2)(b)’s safe harbor provision does

Cite as 370 Or 339 (2022) 347

Although the parties agree that the legal effect of

the prefatory clause is to resolve conflicts between the pro-

hibitions in ORS 166.250(1) and the cross-referenced provi-

sions, the parties disagree about whether the inclusion of

ORS 166.270 among the cross-referenced provisions sug-

gests that the legislature intended ORS 166.270 to be inter-

preted as conflicting with ORS 166.250(1).

That question arises in this case because, unlike

the other cross-referenced provisions, ORS 166.270 does

not clearly conflict with the prohibitions in ORS 166.250(1).

The two provisions can be reconciled without resorting to

the prefatory clause. The 15-year exception in ORS 166.270

(4)(a) is not a general authorization to possess firearms. It

does not provide that, after 15 years, a qualifying felon is

no longer subject to any limits on gun possession and own-

ership imposed based on a person’s felony status. Instead,

by its terms, ORS 166.270(4)(a) creates an exception only

to ORS 166.270(1); that is, ORS 166.270(4)(a) provides,

“Subsection (1) of this section does not apply” to certain

persons. (Emphasis added.) To be sure, if the only prohibi-

tion on felons possessing firearms was contained in ORS

166.270(1), then the effect of ORS 166.270(4)(a) would be to

authorize qualified individuals to possess firearms. But ORS

166.250(1)(c)(C) separately prohibits felons from possessing

firearms. And the exception in ORS 166.270(4)(a) refers only

to ORS 166.270(1); it does not refer to, or have any necessary

implications for, the prohibition in ORS 166.250(1)(c)(C).

Defendant, however, argues that the inclusion of

ORS 166.270 in the prefatory clause must have been intended

to limit the prohibitions in ORS 166.250(1), otherwise ORS

166.270 would not have been included in the prefatory clause

at all. See Crystal Communications, Inc. v. Dept. of Rev., 353

Or 300, 311, 297 P3d 1256 (2013) (identifying the “general

rule” that “we construe a statute in a manner that gives

effect, if possible, to all its provisions”); ORS 174.010 (“In

not inform that question. Rather, the safe harbor provision limits the prohibi-

tions in ORS 166.250(1), and ORS 166.270 limits the safe harbor provision. But

the reference to ORS 166.270 in the safe harbor provision does not limit the pro-

hibitions in ORS 166.250(1). Thus, the reference to ORS 166.270 in the safe har-

bor provision neither explains nor is relevant to the inclusion of ORS 166.270 in

the prefatory clause to ORS 166.250(1).

348 State v. Burris

the construction of a statute, the office of the judge is * * *

not to * * * omit what has been inserted[.]”). And the only

way to read ORS 166.270 as a limit on the prohibitions in

ORS 166.250(1) is to read the prefatory clause as incorpo-

rating the exceptions from ORS 166.270. According to defen-

dant, where ORS 166.250(1) provides that it is illegal for a

felon to possess a firearm “[e]xcept as otherwise provided in

* * * [ORS] 166.270,” the reference to ORS 166.270 serves to

incorporate the exceptions to the same prohibited conduct in

ORS 166.250(1)(c)(C).

The state does not offer a better interpretation of

the prefatory clause that gives effect to the inclusion of ORS

166.270. Instead, the state argues that the inclusion of ORS

166.270 in the prefatory clause need not be given legal effect.

According to the state, we should not assume that every pro-

vision identified in the prefatory clause conflicts with the

prohibitions in ORS 166.250(1). For example, the state notes

that, although the prefatory clause refers to the series ORS

“166.410 to 166.470,” not every statute within that series

limits the prohibitions in ORS 166.250(1). See, e.g., ORS

166.434 (describing the Department of State Police’s duties

in conducting criminal background checks).

There are, however, innumerable statutes that do

not conflict with the prohibitions in ORS 166.250(1). The state

offers no explanation for why ORS 166.270 was expressly

identified in the prefatory clause to ORS 166.250(1), while

other statutes were not. Further, the prefatory clause’s ref-

erence to the series ORS “166.410 to 166.470” is given effect

if some provision within the series limits the prohibitions in

ORS 166.250(1)—such as ORS 166.460, which limits how

the prohibitions apply to antique firearms—even if not all

the statutes within the series contain a limit. Thus, fail-

ing to interpret ORS 166.270 as limiting the prohibitions in

ORS 166.250(1) raises a risk of surplusage in the prefatory

clause that does not arise from failing to read each statute

within a referenced series as limiting the prohibitions in

ORS 166.250(1).

C. Reconciling ORS 166.250(1)(c)(C) and ORS 166.270(1)

The difficulty in this case, therefore, is that we have

two statutes that do not fit easily together. On the one hand,

Cite as 370 Or 339 (2022) 349

the prohibitions in ORS 166.250(1) are limited by a prefatory

clause that provides, “Except as otherwise provided in * * *

[ORS] 166.270,” but, on the other hand, ORS 166.270 does

not clearly provide otherwise. Reconciling those statutes

requires tracing their historical development. In their cur-

rent form, those statutes are the result of numerous legisla-

tive enactments going back almost 100 years. Our inquiry

into legislative intent must consider the intent behind each

enactment that affects the meaning or context of the dis-

puted terms. See State v. Swanson, 351 Or 286, 290, 266 P3d

45 (2011) (explaining that the proper inquiry for statutory

construction focuses on “the intent of the legislature that

enacted the statute,” although “we also consider any later

amendments or statutory changes that were intended by the

legislature to modify or otherwise alter the meaning of the

original terms of the statute”).

1. The prefatory clause’s express identification of ORS

166.270

Tracing the historical development of the statutes

demonstrates that, at the time the cross-reference to ORS

166.270 was added to ORS 166.250(1)’s prefatory clause,

it had no legal effect. Instead, it was added by Legislative

Counsel as an artifact of the legislature’s conversion from

the Oregon Compiled Laws Annotated (OCLA) to the

Oregon Revised Statutes (ORS) in 1953. Thus, contrary to

defendant’s presumption, the express identification of ORS

166.270 in ORS 166.250(1)’s prefatory clause is not, by itself,

evidence of legislative intent to treat ORS 166.270 as a limit

on the prohibitions in ORS 166.250(1).

a. Enactment in 1925

The provisions that would become ORS 166.250 and

ORS 166.270 were enacted by the legislature in 1925 as part

of a bill that comprehensively regulated the use, sale, man-

ufacture, and possession of handguns and other concealable

firearms. General Laws of Oregon 1925, ch 260. The provi-

sion that would become ORS 166.270 was found in section 2

of that act. But unlike the current version of ORS 166.270,

section 2 did not prohibit persons who had previously been

convicted of a felony from owning or possessing all fire-

arms; it prohibited them only from owning or possessing

350 State v. Burris

concealable firearms.4 And unlike the current version of

ORS 166.270, section 2 did not contain any exceptions, like

the 15-year exception at issue in this case. Violation of sec-

tion 2 was punishable by at least one year, but not more

than five years, of imprisonment.

The provision that would become ORS 166.250 was

found in section 5 of that act. Section 5 prohibited all per-

sons from carrying a concealed handgun, or other conceal-

able firearm, without a license to do so. Unlike the current

version of ORS 166.250(1)(c), section 5 did not list catego-

ries of individuals, such as felons, who were prohibited from

possessing a handgun or firearm. And unlike the current

version of ORS 166.250(1), section 5’s prefatory clause did

not list specific statutes limiting that prohibited conduct.

Instead, the prefatory clause provided, “Except as otherwise

provided in this act,” without indicating which other provi-

sions of the act might contain exceptions to the conduct pro-

hibited in section 5.5 General Laws of Oregon 1925, ch 260,

§ 5 (emphasis added). Although section 2 (the predecessor

to ORS 166.270) was part of that act, there was no way to

read the original prefatory clause as referring to section 2,

which did not limit the prohibitions in section 5. That orig-

inal act, however, contained other provisions limiting the

prohibitions in section 5, which would fall within that orig-

inal prefatory clause.6 Violation of section 5 was generally

a misdemeanor, although it could be elevated to a felony

depending on a person’s criminal history.

4

Section 2 also prohibited an “unnaturalized foreign-born person” from

owning or possessing a handgun or other concealable firearm. General Laws of

Oregon 1925, ch 260, § 2. That prohibition remained the law until 1975. Or Laws

1975, ch 702, § 1.

5

Section 5 relevantly provided,

“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 section 8 hereof [providing

for concealed carry licenses].”

General Laws of Oregon 1925, ch 260, § 5.

6

Many of those limiting provisions appear, in one form or another, in current

law. See General Laws of Oregon 1925, ch 260, § 5 (containing the predecessor to

ORS 166.250(2)); General Laws of Oregon 1925, ch 260, § 6 (containing the pre-

decessor to ORS 166.260); General Laws of Oregon 1925, ch 260, § 15 (containing

the predecessor to ORS 166.460).

Cite as 370 Or 339 (2022) 351

Thus, the relationship between section 2 and sec-

tion 5 of the original act—the predecessors to ORS 166.270

and ORS 166.250(1)—presented none of the potential entan-

glements that give rise to defendant’s argument under the

current versions of those laws: the prefatory clause to sec-

tion 5 did not refer to section 2, either expressly or impliedly;

section 2 and section 5 did not prohibit the same conduct;

and section 2 contained no exceptions to the prohibition on

felons possessing handguns.

b. Conversion to the Oregon Revised Statutes in

1953

That was largely the state of the law when the leg-

islature converted to the Oregon Revised Statutes in 1953.7

The legislature did so by repealing existing laws and reen-

acting them, in a revised and reorganized form, as the ORS.

Or Laws 1953, ch 3, §§ 1-2. The revision and reorganization

necessary to create the ORS were intended to make the law

clearer and to make the compilation of law easier to use.

See Charles G. Howard, The Oregon Revised Statutes, 33 Or

L Rev 58, 59 (1953) (“Not only does the revision restate the

law so it is clear and explicit; it also classifies and arranges

the law so it can be readily located.”). Changes made to the

law as part of the conversion were not intended to be sub-

stantive. See Eckles v. State of Oregon, 306 Or 380, 393 n 13,

760 P2d 846 (1988) (“Oregon Laws 1953, chapter 3, repealed

laws then in existence and reenacted them as the ‘Oregon

Revised Statutes.’ Although textual changes were made, no

substantive changes in the laws were intended.”).

The conversion to the ORS affected the statutes at

issue in this case in two ways. First, the legislature assigned

ORS numbers to the statutes that originated from the 1925

enactment described above. The prohibition on the posses-

sion of a concealable firearm by a felon was codified as ORS

166.270 (1953), while the prohibition on the unlicensed car-

rying of a concealed firearm was codified as ORS 166.250(1)

(1953).

7

Prior to the conversion to the ORS, the relevant statutes were amended in

1933 to address the possession of machine guns. Or Laws 1933, ch 315, §§ 2, 3;

see also Or Laws 1941, ch 330, § 1 (reenacting a section of the 1933 act to remedy

an apparent title defect). The regulation of machine guns was moved to its own

statute in 1989. Or Laws 1989, ch 839, § 13a, codified as ORS 166.272.

352 State v. Burris

Second, the legislature amended the prefatory clause

that appeared in ORS 166.250(1). Whereas the prefatory

clause had previously provided, “Except as otherwise pro-

vided in this act,” the revised prefatory clause replaced the

word “act” with the new ORS numbers assigned to all the

substantive provisions that originated from the 1925 act.

See Legislative History, Reviser’s Notes and Annotations for

Chapters 1 to 170 of the Oregon Revised Statutes 1075 (1953)

(“All of the sections of [General Laws of Oregon] 1925 c. 260

have been substituted for the word act in OCLA(s) 25-115[.]”).8

The revised prefatory clause appearing in ORS 166.250(1)

(1953) provided, “Except as otherwise provided in this section,

ORS 166.230, 166.260 to 166.290, or 166.410 to 166.470[.]”

Thus, the statutes identified in the revised prefa-

tory clause were chosen not because the legislature thought

or intended that each cross-referenced statute limited the

prohibitions in ORS 166.250(1). Rather, the prefatory clause

cross-referenced those statutes because they had originated

from the 1925 act, and cross-referencing them was needed

to maintain substantive continuity with the law as it existed

prior to the conversion to ORS.

c. Legislative Counsel’s modification in 1959

Defendant’s argument in this case relies on the fact

that ORS 166.270 is identified expressly in the prefatory

clause, and not merely as part of a series, as it was in the

first version of the ORS. See former ORS 166.250(1) (1953)

(referring to “[ORS] 166.260 to 166.290”). The prefatory

clause first expressly identified ORS 166.270 in the 1959

version of ORS 166.250(1), where the prefatory clause pro-

vided, “Except as otherwise provided in this section, ORS

166.230, 166.260, 166.270, 166.280, 166.290, or 166.410 to

166.470[.]”

That change, however, was not made by legislative

enactment. No legislative enactment from 1953 to 1959

amended either ORS 166.250 or ORS 166.270. Instead, the

change appears to have been made by Legislative Counsel

8

Prior to the ORS, the statute that originated as section 5 from the 1925 act

was first codified as Oregon Code 72-205 (1930) and then later as OCLA 25-115

(1939).

Cite as 370 Or 339 (2022) 353

under its authority to assign ORS numbers to enacted

laws and to ensure the accuracy of cross-referenced provi-

sions. See former ORS 173.160 (1959) (providing Legislative

Counsel with authority to “change reference numbers to

agree with renumbered chapters, sections or other parts

[and] substitute the proper subsection, section or chapter or

other division number”).

By replacing the series reference “166.260 to

166.290” with references to individual statutes “166.260,

166.270, 166.280, [and] 166.290,” the 1959 prefatory clause

excluded one statute that would have otherwise been

included: ORS 166.275, prohibiting inmates from possess-

ing weapons. The legislature had enacted that provision in

1953, separate from the conversion to the ORS. Or Laws

1953, ch 533, § 1. The legislature, however, did not spec-

ify that that provision should be added to and made part

of any particular chapter, section, or series. The decision to

assign that provision the number ORS 166.275 was made

by Legislative Counsel. That decision meant that the series

reference to “166.260 to 166.290” in the prefatory clause to

ORS 166.250(1) could be read as including a statute that did

not originate from the 1925 act and had not otherwise been

identified by the legislature for inclusion in ORS 166.250(1)’s

prefatory clause.

Legislative Counsel’s modification to the prefatory

clause in 1959 appears intended to correct that.9 Although

Legislative Counsel did not expressly identify each change

9

The same change was made in a different sentence in ORS 166.250(1). Prior

to the conversion to the ORS, violating the prohibitions on unlawful concealed

carry and unlawful possession in a vehicle was generally a misdemeanor, except

that it was a felony if committed by a person previously convicted of a felony or

“any crime made punishable by this act.” OCLA § 25-115 (1939); General Laws of

Oregon 1925, ch 260, § 5. The 1953 ORS made that crime a felony if committed

by a person previously convicted of a felony or “any crime made punishable by

this section, ORS 166.230, 166.260 to 166.290 or 166.410 to 166.470.” Former

ORS 166.250(1) (1953). Without legislative enactment, the 1959 ORS replaced

the reference to “166.260 to 166.290” to exclude ORS 166.275 by referring instead

to “166.260, 166.270, 166.280, 166.290 or 166.410 to 166.470.” Former ORS

166.250(1) (1959).

In 1985, the legislature amended ORS 166.250 to eliminate that sentenc-

ing enhancement. Or Laws 1985, ch 543, §§ 3(1)(c), (4). Following the 1985

amendment, all violations of ORS 166.250(1) are Class A misdemeanors. ORS

166.250(5).

354 State v. Burris

that it made to enacted laws during the compilation of the

ORS in 1959, Legislative Counsel nevertheless described

the types of changes that it made. Oregon Revised Statutes,

Preface, v-vi (1959). Those types of changes included cor-

recting series references to account for new laws that were

assigned ORS numbers within that series, if the legislature

had not provided that the new laws should be “added to and

made part of” the series:

“[S]uch alterations [to unamended ORS sections] were

also made when new session law sections were classified

and assigned ORS numbers within the series but were

not, by law, ‘added to and made a part of’ the series. Thus

‘ORS 657.150 to 657.215’ was changed to ‘ORS 657.150 to

657.176 and 657.190 to 657.215’ in the 1959 Replacement

Part because section 4, chapter 643, Oregon Laws 1959

(which was not added to and made a part of ‘ORS 657.150

to 657.215’) was assigned the ORS number ‘657.178.’ ”

Id. at vi.10

10

A similar dynamic arises in the briefing of this case. As noted above, the

prefatory clause in ORS 166.250(1) refers to the series ORS “166.410 to 166.470,”

and the state argues that not every statute within that series contains an excep-

tion to the prohibitions in ORS 166.250(1). In making that point, the state cites

ORS 166.414, ORS 166.416, and ORS 166.421 as examples, among others.

Those statutes, however, are not part of the series ORS “166.410 to 166.470”

referred to in the prefatory clause in ORS 166.250(1). Generally, Legislative

Counsel assigns ORS numbers to enacted laws. Without direction from the leg-

islature, Legislative Counsel cannot create an exception to ORS 166.250(1) by

assigning an enacted law an ORS number that falls within the series cited in its

prefatory clause. A statute has the effect of falling within a series only if the leg-

islature says that it falls within the series. In the published ORS, those statutes

cited by the state each refer to a note that says, “ORS 166.412 to 166.421 were

enacted into law by the Legislative Assembly but were not added to or made a

part of ORS chapter 166 or any series therein by legislative action.” Note to ORS

166.412; see also notes to ORS 166.414, 166.416, and 166.421 (referring to note to

ORS 166.412).

The note then provides that further explanation may be found in the Preface

to the Oregon Revised Statutes. The Preface provides,

“Notes may indicate that a particular ORS section was not added to and

made a part of the ORS chapter or series in which the section appears. These

notes mean that the placement of the section was editorial and not by legis-

lative action. Notes also are used when the series references are either too

numerous or too complex to bear further adjustment. However, the note does

not mean that the section not added to a series or a chapter is any less the

law. The note is intended only to remind the user that definitions, penalties

and other references to the series should be examined carefully to determine

whether they apply to the noted section.”

Oregon Revised Statutes, Preface, viii (2021) (emphasis in original).

Cite as 370 Or 339 (2022) 355

Thus, the decision to expressly identify ORS 166.270

in ORS 166.250(1)’s prefatory clause was made by Legislative

Counsel to accurately reflect prior legislative enactments.

And those prior enactments demonstrate no legislative intent

that ORS 166.270 limit the prohibitions in ORS 166.250(1).

At that time, it was not possible to read ORS 166.270 as lim-

iting the prohibitions in ORS 166.250(1), because the former

did not include any exceptions at all.

Establishing that the inclusion of ORS 166.270 in

the prefatory clause originally had no legal effect has

important implications. It means that we no longer start

with our normal assumption that the legislature intended to

give effect to all the words of a statute. And it means that we

examine later amendments to the relevant statutes to deter-

mine whether the legislature intended the prefatory clause’s

reference to ORS 166.270 to have some legal effect within

the amended statutory scheme or whether the legislature

intended the reference to remain without legal effect. See

Swanson, 351 Or at 290 (explaining that we “consider any

later amendments or statutory changes that were intended

by the legislature to modify or otherwise alter the meaning

of the original terms of the statute”).

2. Creation of the 15-year exception in ORS 166.270

After the 1959 changes discussed above, the next

relevant enactment took place in 1975, when the legislature

amended ORS 166.270 to, among other things, create the

exception at issue in this case. That amendment placed the

prohibition on a felon possessing a concealable firearm in

subsection (1) and added three new subsections. Or Laws

1975, ch 702, § 1. One of the new subsections, subsection (3),

created an exception to the prohibition in subsection (1) for

persons with only one prior felony, if that prior felony convic-

tion did not involve the possession or use of weapons and if

the person had been discharged from imprisonment, parole,

or probation from that conviction more than 15 years earlier.

Or Laws 1975, ch 702, § 1(3).

At that time, ORS 166.270 was the only statute

that limited a person’s firearm privileges based on that per-

son’s criminal record. So, by adopting that exception to ORS

166.270, the legislature created a mechanism for restoring

356 State v. Burris

the firearm privileges of those who qualified—namely, peo-

ple with only one prior felony conviction, if that prior felony

conviction did not involve certain weapons. The restoration

of firearm privileges would take effect by operation of law 15

years after the qualifying individual was discharged from

imprisonment, parole, or probation resulting from that fel-

ony conviction.

The creation of that exception, however, did not give

meaning to the inclusion of ORS 166.270 in the prefatory

clause to the prohibitions in ORS 166.250(1), and did not

otherwise affect the relationship between ORS 166.250(1)

and ORS 166.270, which continued to independently impose

their respective prohibitions. The legislative history of the

1975 amendment reveals no discussion indicating an intent

that the exception to the prohibition in ORS 166.270(1), which

prohibited felons from owning or possessing concealable

firearms, would affect the prohibitions in ORS 166.250(1),

which prohibited all persons from carrying a concealed

firearm without a license. At the time, the prohibitions in

ORS 166.250(1) were generally applicable and not based on

a person’s criminal record or status as a felon. The excep-

tion in ORS 166.270 did not create an exception to those

generally applicable firearm prohibitions. Instead, except-

ing a felon from the firearm prohibitions in ORS 166.270

simply meant that the felon would be subject to the same

generally applicable firearm restrictions in ORS 166.250(1)

and not subject to the additional restrictions found in

ORS 166.270.

3. Amending ORS 166.250(1) to prohibit felon in

possession

The last relevant amendment came in 1989, when

the legislature amended ORS 166.250(1) and ORS 166.270(1)

to prohibit a felon from possessing any firearm, concealable

or not. Or Laws 1989, ch 839, §§ 4(1), 13(1). Those amend-

ments were part of a comprehensive gun control bill follow-

ing a mass shooting at a school in California carried out

with a gun purchased in Oregon. The bill was a compromise

that, on the one hand, expanded prohibitions on firearm

sales and possession, while, on the other hand, facilitated

the issuance of concealed handgun permits and created new

Cite as 370 Or 339 (2022) 357

avenues for relief from disabilities that would otherwise pre-

clude firearm possession.

The 1989 changes to ORS 166.250(1) and ORS

166.270(1) were part of the legislative effort to expand the

prohibitions on firearm possession. As described above, ORS

166.250(1) had prohibited the unlicensed concealed carry-

ing, either on a person or readily accessible within a vehicle,

of certain firearms. The 1989 amendment continued to pro-

hibit the concealed carrying of certain firearms and added

new prohibitions on possessing any firearm by certain cate-

gories of people, including minors, persons convicted of a fel-

ony, persons found guilty except for insanity of a felony, and

persons subject to certain mental health orders. Or Laws

1989, ch 839, § 13. A violation of ORS 166.250 remained a

misdemeanor.

At the same time, the legislature expanded the pro-

hibition on firearm possession in ORS 166.270(1). Subject

to the exception for people with only one older felony convic-

tion that did not involve certain weapons, that statute had

previously prohibited a felon from possessing a concealable

firearm. The 1989 amendment retained that exception but

expanded the prohibition to preclude a felon from possessing

any firearm. Or Laws 1989, ch 839, § 4. A violation of ORS

166.270(1) remained a felony.

The result of that act is that both ORS 166.250

(1)(c)(C) and ORS 166.270(1) prohibit the same conduct—

possession of a firearm by a person previously convicted of a

felony. The question is whether the legislature intended the

exception to ORS 166.270(1) to apply as well to the prohibi-

tion in ORS 166.250(1)(c)(C).

Under the state’s interpretation, adding the prohi-

bition on a felon possessing a firearm to ORS 166.250 had

the effect of revoking the automatic restoration of firearm

privileges provided by the 15-year exception to ORS 166.270

adopted in 1975. According to the state, a felon who qualifies

for that exception no longer gets his or her firearm privileges

restored by operation of law 15 years after being discharged

from imprisonment, parole, or probation for the qualifying

conviction. Instead, under the state’s interpretation, a felon

358 State v. Burris

would continue to be subject to a firearm disability under the

newly enacted ORS 166.250(1)(c)(C) until the felon applied

for and received relief from disability, such as through ORS

166.274. That provision was also adopted as part of the same

bill in 1989 and, as originally adopted, allowed “[a] person

barred from possessing a firearm under ORS 166.250(1)(c)

or 166.270 or barred from purchasing a firearm under ORS

166.470 [to] file a petition for relief from the bar” in justice or

municipal court and provided that relief from the bar shall

be granted if the petitioner demonstrates that he or she

“does not pose a threat to the safety of the public or the peti-

tioner.” Or Laws 1989, ch 839, § 11(1), (6).11 To that end, the

legislature amended the prefatory clause to ORS 166.250(1)

to include that process. See Or Laws 1989, ch 839, § 13(1)

(“Except as otherwise provided in * * * [section] 11 * * *.”).

Under defendant’s interpretation, adding the prohi-

bition on a felon possessing a firearm to ORS 166.250 had

the effect of giving new meaning to the inclusion of ORS

166.270 in the prefatory clause to ORS 166.250(1). As dis-

cussed above, prior to the 1989 amendments, the inclusion

of ORS 166.270 in the prefatory clause was merely an arti-

fact of the conversion to the ORS. It had no legal effect and

did not function to make the exception to the prohibition

in ORS 166.270(1) an exception to the prohibitions in ORS

166.250(1). But, according to defendant, expanding the pro-

hibitions in ORS 166.250(1) to include prohibiting felons

from possessing firearms implicated the exception to ORS

166.270(1) and, thus, the inclusion of ORS 166.270 in the

prefatory clause limited the scope of the new prohibition.

The state counters that the legislature likely intended

the two offenses to have at least some independent effect.

According to the state, while the less serious misdemeanor

offense in ORS 166.250(1)(c)(C) would apply to all felons,

the more serious felony offense in ORS 166.270(1) would

apply only to those felons with more recent convictions (dis-

charged less than 15 years ago), felons with more than one

11

In its current form, ORS 166.274(1) provides an avenue for relief from dis-

ability if “[t]he person is barred from possessing a firearm under ORS 166.250

(1)(c)(A), (C) or (H) or 166.270” or if “[t]he person is barred from receiving a fire-

arm under ORS 166.470 (1)(a) or (b) or, if the person has been convicted of a mis-

demeanor involving violence, ORS 166.470 (1)(g).” ORS 166.274(1)(a) - (b).

Cite as 370 Or 339 (2022) 359

felony conviction, or felons with a certain type of prior felony

offense.12 That distinction would be lost under defendant’s

interpretation.

The parties have not pointed us to any legislative

history in 1989 directly addressing the inclusion of ORS

166.270 in the prefatory clause to ORS 166.250(1) or the

relationship between those provisions otherwise. Because

the amendments to those provisions were part of a much

larger bill, the committee hearings and exhibits do not

address every provision in detail.

The limited legislative history materials that are

relevant support the state’s interpretation. Those materi-

als indicate that the new prohibition on a felon possessing

a firearm in ORS 166.250(1)(c)(C) was not intended to track

the scope of the prohibition in ORS 166.270(1), as defen-

dant contends. Instead, the materials indicate that the new

prohibition on a felon possessing a firearm in ORS 166.250

(1)(c)(C) was intended to track the scope of ORS 166.470,

which contains prohibitions on certain firearm transfers

that the legislature expanded in 1989.

The principal sponsor of the 1989 bill was Speaker

of the House of Representatives Vera Katz, who was rep-

resenting a diverse coalition of groups that had developed

the proposed bill. In a document introducing the bill to com-

mittees in the House and Senate, Speaker Katz indicated

that the list of persons prohibited from possessing firearms

under amendments to ORS 166.250 was intended to track

the list of persons to whom it was illegal to transfer firearms

under amendments to ORS 166.470. See Exhibit A, House

Committee on Judiciary, HB 3470, Apr 20, 1989, at 10 (“ORS

166.250 as amended also prohibits persons from possessing

firearms who would be prohibited from purchasing fire-

arms under HB 3470.”); Exhibit B, Senate Committee on

Judiciary, HB 3470, June 28, 1989, at 11 (same).13

12

In 1989, the types of offenses that would preclude a person from qualify-

ing for the exception to ORS 166.270(1) were limited to felony offense involving

possession or use of firearms or switchblade knives. That was later expanded to

include felony convictions for criminal homicide. Or Laws 1993, ch 735, § 2(4)(a).

13

That same point was made in a document prepared by legislative staff for

the subcommittee of the House Judiciary Committee that considered the bill. See

Exhibit A, House Committee on Judiciary, Subcommittee on Natural Resources

360 State v. Burris

Those amendments to ORS 166.470 indicate an

intent to expand the bar on transferring firearms beyond

those prohibited from possessing firearms under ORS

166.270. Before the 1989 amendments, the prohibition on

transferring firearms in ORS 166.470 had been tied to

the prohibition on selling firearms in ORS 166.270, mak-

ing it a crime to sell, deliver, or otherwise transfer a hand-

gun or other concealable firearm to someone known to be

“within any of the classes prohibited by ORS 166.270 from

owning or possessing such firearms.” Former ORS 166.470

(1987). Thus, it would have been legal to transfer a firearm

to a person who qualified for the 15-year exception to ORS

166.270 enacted in 1975. The 1989 amendments, however,

disconnected the two statutes. As amended in 1989, ORS

166.470 prohibited the transfer of any firearms to a person

whom the transferor knows or reasonably should know “has

been convicted of a felony.” Or Laws 1989, ch 839, § 3(1)(b),

currently codified as ORS 166.470(1)(b). And, unlike ORS

166.250, ORS 166.470 does not include a prefatory clause

that creates any room for incorporating the 15-year excep-

tion to ORS 166.270.

If the legislature intended the prohibitions on pos-

session in ORS 166.250(1)(c) to track the prohibitions on

transferring firearms in ORS 166.470 and expanded the

prohibitions on transferring firearms in ORS 166.470 to be

broader than the prohibitions on possession in ORS 166.270,

then it suggests that the prohibition on possession in ORS

166.250(1)(c) was not intended to be limited by the scope of

ORS 166.270.

While that legislative history is not conclusive, it

supports the most natural reading of the words enacted by

the legislature. The 15-year exception in ORS 166.270(4)(a)

is an exception that is limited to the prohibition in ORS

166.270(1). See ORS 166.270(4)(a) (“Subsection (1) of this

section does not apply to * * *.”). That exception does not

authorize a qualifying person to engage in the conduct

otherwise prohibited by ORS 166.270(1); it merely excepts

and Gaming Violations, HB 3470, May 11, 1989, at 13 (“This section[ ] broadens

the current crime of unlawful possession of a firearm by expanding it to include

persons prohibited under this Act from purchasing firearms.”).

Cite as 370 Or 339 (2022) 361

them from the felony offense set out in ORS 166.270(1). As

a result, ORS 166.270(4)(a) does not provide an exception

to the misdemeanor offense set out in ORS 166.250(1)(c)(C),

and therefore is not implicated by that statute’s prefatory

clause, which provides, “Except as otherwise provided in

* * * [ORS] 166.270.” Although that means that the inclusion

of ORS 166.270 in that prefatory clause has no legal effect,

that is consistent with the legislative enactments that led to

its inclusion.

We therefore conclude that the exception for certain

older felony convictions in ORS 166.270(4)(a) does not apply

to the prohibition on a felon possessing a firearm under ORS

166.250(1)(c)(C). And we conclude that the trial court did not

err in denying defendant’s motion to present evidence that he

qualified for the exception in ORS 166.270(4)(a) as a defense

to the charge of attempted violation of ORS 166.250(1)(c)(C).

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.