People v. Peals

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 31, 2006

THE PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 128376

DARRYL PEALS,

Defendant-Appellant.

_______________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, J.

We granted leave to appeal to consider whether the weapon at issue in this

case constituted a “firearm” as defined in MCL 750.222(d), and thus whether

defendant was properly convicted of being a felon in possession of a firearm,

MCL 750.224f(1); and possession of a firearm during the commission of a felony,

MCL 750.227b. We hold that the text of the statutory definition indicates that a

weapon is a firearm if it is the type of weapon that was designed or intended to

propel a dangerous projectile by an explosive, gas, or air. The definition describes

the category of weapons that constitute a “firearm,” but it does not prescribe a

requirement that the weapon be “operable” or “reasonably or readily repairable.”
In other words, the design and construction of the weapon, rather than its state of

operability, are relevant in determining whether it is a “firearm.”

It is not disputed that the weapon in this case is the type of weapon that

propels dangerous projectiles. It thus qualifies as a firearm under the statutory

definition. We therefore affirm the judgment of the Court of Appeals and affirm

defendant’s convictions of felon in possession of a firearm and felony-firearm.

I. Factual Background and Procedural Posture

A jury found defendant guilty of felon in possession of a firearm and

felony-firearm. Testimony at trial explored the condition of the gun found in

defendant’s possession. Defendant testified that he found the gun lying in two

pieces in the grass and that he picked up the pieces and put them in his pocket.

Upon examining them later, he saw that there was damage and thought that the

gun was inoperable.

The police officer who examined the gun when it was received into

evidence testified that “the weapon did not function as it was mechanically

designed to function.” It was missing the firing-pin assembly, part of the slide

(and the part that remained was cracked), the magazine, and some springs. He

further acknowledged that without the firing-pin assembly, “you cannot fire a

bullet through that weapon.”

When asked whether, despite the broken slide, a round could be fired from

the gun if the missing springs as well as the firing pin were replaced, the officer

responded:

2

 To the best of my knowledge the way this slide sits right now
with the broken piece I don’t even know that it would properly
chamber around [sic]. The fact of the tension of the springs if it had
all of the springs would probably not allow this slide to close
completely anyway to actually fire it. If it had the proper stop but
this portion here of the slide was broken you’d get one round off.
But with the function of the weapon and the slide going to the rear
and nothing to stop it that slide is going to come off . . . .

On further examination, the officer testified, “If this weapon fired a round with the

springs and without having the ejector stop, you would loose [sic] the slide. It

would eject completely to the rear and you wouldn’t be able to get a second shot

off.”

Without objection, the trial court provided the following instruction to the

jury regarding the operability of the gun:

A handgun need not be currently operable in order to qualify
as a firearm for purposes of the offenses of felon in possession of a
firearm and possession of a firearm at the time of the commission or
attempted commission of a felony.

When the jury requested further clarification of what constitutes a firearm,

the court stated:

A firearm includes any weapon from which a dangerous
weapon [sic] can be shot or propelled by the use of explosive gas or
air. A handgun need not be currently operable in order to be
qualified as a firearm for the purposes of felon in possession of a
firearm and possession of a firearm at the time of a commission or
attempted commission of a felony.

Defendant did not object to this instruction.

3

 The jury returned a verdict of guilty on both counts of felon in possession

of a firearm and felony-firearm. The Court of Appeals affirmed defendant’s

convictions.1

II. Standard of Review

This case requires us to interpret the definition of “firearm” contained in

MCL 750.222(d). We review de novo questions of statutory construction. People

v Perkins, 473 Mich 626, 630; 703 NW2d 448 (2005).

III. Analysis

Initially, we note that both offenses of which defendant stands convicted,

felon in possession of a firearm and felony-firearm, require proof that the

defendant possessed a “firearm.” The Legislature has defined that term in MCL

750.222(d):

“Firearm” means a weapon from which a dangerous
projectile may be propelled by an explosive, or by gas or air.
Firearm does not include a smooth bore rifle or handgun designed
and manufactured exclusively for propelling by a spring, or by gas
or air, BB’s not exceeding .177 caliber. [Emphasis added.]

On appeal, the sole challenge to defendant’s convictions is that the weapon found

in his possession was in such a state of disrepair that it could not constitute a

“firearm” as defined in MCL 750.222(d).

1
People v Peals, unpublished memorandum opinion of the Court of
Appeals, issued February 15, 2005 (Docket No. 251406).

4

 It is readily apparent that the key question in construing MCL 750.222(d) is

the meaning of the word “may” in the phrase, “a dangerous projectile may be

propelled . . . .” Where, as here, a statute does not contain internal definitions of

terms used in it, we give terms their ordinary meaning. Title Office, Inc v Van

Buren Co Treasurer, 469 Mich 516, 522; 676 NW2d 207 (2004). In such

instances, it is often helpful to consult dictionary definitions. Id. Random House

Webster’s College Dictionary (1997) lists a number of definitions for “may” as an

auxiliary verb:

1. (used to express possibility) . . . 2. (used to express
opportunity or permission) . . . 3. (used to express contingency, esp.
in clauses indicating condition, concession, purpose, result , etc.) . . .
4. (used to express wish or prayer) . . . 5. (used to express ability or
power.) . . . .

Reviewing these definitions in the context of the statute, it seems that the

third and fourth definitions are more compatible with the understanding that a

weapon is a firearm if it was designed or intended to propel a dangerous projectile.

The words “purpose,” “wish,” and “prayer” connote intention, aim, or planning.

In other words, these definitions are consonant with the idea that a weapon is a

firearm if that was the intent or design of its creator.

The first, second, and fifth definitions, meanwhile, seem more compatible

with the understanding that a weapon is a firearm if it possesses the ability to

propel a dangerous projectile. The words “opportunity,” “possibility,” “ability,”

and “power” connote capability or capacity. In other words, these definitions are

5

consonant with the idea that a weapon is a firearm if it has the ability or power to

fire a projectile.

Because both of these meanings are plausible given the use of “may” in the

statute, we are required to make a determination as to which meaning is most

representative of the Legislature’s intent. As will be discussed below, we

conclude that the offenses of which defendant was convicted do not require proof

that the firearm was “operable” or “reasonably or readily operable.” Rather, the

statute requires only that the weapon be of a type that is designed or intended to

propel a dangerous projectile.2

We reach this conclusion on the basis of several considerations. Initially, to

the extent that the “may” clause serves as a restrictive clause, narrowing the class

of “weapons” that are included within MCL 750.222(d), as we understand it to

do,3 we believe it is more reasonable to view this clause as differentiating between

weapons generally and a specific subclass of weapons, rather than as

2
Justice Kelly suggests that because we believe that there are two plausible
meanings to the statute at issue we must construe it in favor of the defendant. Post
at 22. We note, however, that penal laws “are not to be construed so strictly as to
defeat the obvious intention of the legislature.” United States v Wiltberger, 18 US
(5 Wheat) 76, 95; 5 L Ed 37 (1820). “The maxim is not to be so applied as to
narrow the words of the statute to the exclusion of cases which those words, in
their ordinary acceptation, or in that sense in which the legislature has obviously
used them, would comprehend.” Id. Because we believe that the words of the
statute as a whole indicate an intent to include a broad definition, the rule of lenity
does not force us to choose the stricter definition.
3
Restrictive clauses are not set off by commas. Strunk & White, Elements
of Style (3d ed) (New York: MacMillan Publishing Company, 1979), p 4.

6

differentiating between weapons generally and a specific subclass of weapons and

also between weapons that are operable and weapons that are not.

Moreover, a definition of “may” that is focused on operability would

produce results that we believe are unlikely to have been within the contemplation

of the Legislature in defining “firearm.” Consider by way of illustration, a length

of narrow metal pipe that could be considered a weapon, given its potential for

bludgeoning. Were “may” not to encompass some design component, it is

conceivable that even a simple pipe could constitute a “firearm,” something that is

difficult to reconcile with the fact that it is a “firearm” that is the object of the

“may” clause.

Next, the “operability” definition of “may” would enable a felon to possibly

avoid prosecution by the simple expedients of separating his firearm into separate

parts, hiding a critical part of the firearm, or discarding the firearm immediately

after being seen possessing it so that its level of operability could not be

determined. Given the manifest purpose of the instant statute as reflected in its

text, this would impede firearms prosecutions for reasons that seem altogether

arbitrary and irrational.

It is also noteworthy that in several instances, the Legislature has defined

“dangerous weapon” to include a “loaded or unloaded firearm, whether operable

or inoperable.” See, e.g., MCL 750.110a(1)(b)(i); MCL 600.606(2)(b)(i); MCL

766.14(4)(b)(i) (emphasis added). While these statutes do not fall within the

“firearms” chapter of the Michigan Penal Code, they are instructive on the

7

Legislature’s understanding of what constitutes a “firearm.” If, as the dissent

posits, “firearm” included an operability requirement, defining “dangerous

weapon” to include a firearm “whether operable or inoperable” would be

redundant. “[T]his Court should interpret a statute to ensure that an interpretation

of one provision does not render another superfluous in a substantial number of

cases.” Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 551-

552; 565 NW2d 828 (1997).4

Further, as between the absence of express language in the statute that

either references an operability or a design requirement, we believe that the

absence of the former is more telling in light of the very next sentence of MCL

750.222(d), which defines a “firearm” in further detail in terms of what it was

“designed” and “manufactured” to do. Weapons from which a projectile “may” be

4
Justice Kelly takes the opposite approach, suggesting that if “firearm”
does not include an operability requirement, defining “dangerous weapon” in
MCL 750.110a to include a firearm “whether operable or inoperable” would be
redundant. While at first blush, this may seem reasonable, we believe further
consideration reveals ours to be the better analysis. As noted, MCL
750.110a(1)(b)(i) refers to a “loaded or unloaded firearm, whether operable or
inoperable.” If, as Justice Kelly suggests, our construction of “firearm” renders
the phrase “whether operable or inoperable” redundant, we note that her
construction renders both the phrases “loaded or unloaded” and “whether operable
or inoperable” redundant. After all, under her operability definition of “firearm,”
an unloaded gun would not be able to propel a projectile (as it has none to propel),
and would therefore technically be inoperable. In that sense, then, her definition
of “firearm” would render multiple clauses of MCL 750.110a redundant. Even if
we agreed with her—which we do not—that our interpretation of “firearm”
created a redundancy in MCL 750.110a, such interpretation would still be the
better of the two constructions because it would result in fewer redundancies.

8

propelled are a subclass of weapons generally; because the Legislature only

excluded from that subclass weapons “designed and manufactured exclusively for

propelling . . . BB’s,” necessarily those weapons remaining in the subclass were

“designed and manufactured” to propel a “dangerous projectile” other than BB’s.

Because the Legislature chose to focus on design in limiting the subclass of

weapons that constitute firearms, it is reasonable to conclude that the Legislature

focused on design in creating that subclass in the first instance. Put differently, the

Legislature’s use of “designed and manufactured” in the second sentence of the

statute is telling with regard to which definition of “may” it intended in the first

sentence. It seems apparent that the design—and not the current operability—of a

weapon was of paramount importance to the Legislature in defining what

constitutes a “firearm.”5

Although the defendant relies on People v Hill, 433 Mich 464, 472-473;

446 NW2d 140 (1989), the holding in Hill, according to the Hill Court itself, does

not apply to the offenses in this case. In Hill, two defendants were charged with

possession of the same short-barreled shotgun, MCL 750.224b. Each defendant

had possessed one of the two component parts that constituted the short-barreled

shotgun. This Court ruled that the charges could go forward because “the fact that

5
Contrary to Justice Kelly’s assertion, we do not “ask[] the reader to ignore
the differences in these sentences.” Post at 19-20. Rather, we ask the reader to
view the statute logically as a cohesive whole and not to artificially separate its
component sentences.

9

a firearm is temporarily inoperable does not preclude prosecution for its

possession where the statute expressly prohibits such possession.” Hill, 433 Mich

466. This Court explained that “temporarily inoperable firearms which can be

made operable within a reasonable time fall within the purview of the statutes that

govern the use and possession of firearms.” Id. at 477. This Court then qualified

its holding, however, by explaining that it did “not purport to interpret the

concealed weapon statute or the felony-firearm statute.” Id., n 13. The felon-in-

possession statute had not yet been enacted when Hill was decided. Thus, Hill is

not instructive because its holding appears limited to the offense at issue in that

case, possession of a short-barreled shotgun.

The narrow reach of Hill is further clarified by a long line of Court of

Appeals decisions holding that the felony-firearm statute does not require proof of

operability. Indeed, the Hill Court itself cited and discussed many of those cases,

without disapproving their holdings in any respect. The Hill Court explained:

[C]ourts have held that it is unnecessary to prove the
operability of a weapon as an element of a prosecution of possession
of a firearm during the commission of a felony because this would
be “‘inconsistent with the legislative intent of discouraging the
practice of carrying guns in circumstances where harm is apt to
occur.’” People v Jackson, 108 Mich App 346, 350; 310 NW2d 238
(1981), citing with approval [People v Gibson, 94 Mich App 172,
177; 288 NW2d 366 (1979), rev’d on other grounds 411 Mich 993
(1981)]. [Hill, 433 Mich 475.]

The Hill Court further stated:

Other panels holding that the operability of a firearm is not
necessary for the prosecution of a felony-firearm charge include:
People v Garrett, 161 Mich App 649; 411 NW2d 812 (1987), lv den

10

 430 Mich 856 (1988); People v Poindexter, 138 Mich App 322; 361
NW2d 346 (1984); People v Brooks, 135 Mich App 193; 353 NW2d
118 (1984); People v Broach, 126 Mich App 711; 337 NW2d 642
(1983). [Hill, 433 Mich 475 n 9.]

In short, it is telling that (1) the Hill Court cited and discussed a long line of

Court of Appeals case law holding that operability is not a requirement of a

felony-firearm prosecution, (2) the Hill Court did not express any disapproval of

the Court of Appeals decisions, and (3) the Hill Court expressly stated that it was

not purporting to interpret the concealed weapons statute or the felony-firearm

statute. Hill by its own terms does not support its expansion to the offenses of

felony-firearm and felon in possession of a firearm. Hill thus provides no basis to

reject the Court of Appeals longstanding view that proof of operability is not

required.

Moreover, after the Hill decision, the Court of Appeals has continued to

hold that proof of operability is not required in felony-firearm cases. In People v

Thompson, 189 Mich App 85; 472 NW2d 11 (1991), the defendant argued that his

felony-firearm conviction could not stand because the hammer of his handgun was

broken, thus rendering it inoperable. The Court of Appeals rejected the

defendant’s argument: “Operability is not and has never been an element of

felony-firearm. People v Poindexter, 138 Mich App 322, 333; 361 NW2d 346

(1984); see also People v Garrett, 161 Mich App 649, 653; 411 NW2d 812

(1987), and People v Pierce, 119 Mich App 780; 327 NW2d 359 (1982).”

Thompson, 189 Mich App 86. The Thompson Court noted that “[i]t has long been

11

the practice of this Court to apply a reasonable interpretation of the felony-firearm

statute in order to sustain the deterrent effect intended by the Legislature. See

[Hill, 435 Mich 473-477].” Thompson, 189 Mich App 86-87.

In addition, the Court of Appeals has held, after Hill, that proof of

operability is not required to establish the offense of felon in possession of a

firearm. In People v Brown, 249 Mich App 382; 642 NW2d 382 (2002), the Court

of Appeals noted that various meanings had been accorded to the term “firearm,”

depending on the offense with which the defendant had been charged. In the

context of the concealed weapons statute, MCL 750.227, the Court of Appeals had

held that an inoperable handgun was not a “firearm.” See People v Parr, 197

Mich App 41, 45; 494 NW2d 768 (1992), People v Gardner, 194 Mich App 652,

654; 487 NW2d 515 (1992), and People v Huizenga, 176 Mich App 800, 804-805;

439 NW2d 922 (1989). But in the context of the felony-firearm statute, the Brown

Court noted that Court of Appeals case law does not require proof of operability.

See Thompson, supra; Garrett, supra; and Poindexter, supra. The Brown Court

concluded “that the Thompson analysis, first applied to felony-firearm cases,

should also be applied to felon in possession cases.” Brown, 249 Mich App 384-

385.

To support its conclusion, the Brown Court took note of MCL 750.2, which

provides that the “rule that a penal statute is to be strictly construed shall not

apply” to the provisions of the Michigan Penal Code, which “shall be construed

according to the fair import of their terms, to promote justice and to effect the

12

objects of the law.” Turning to the definition of “firearm” in MCL 750.222(d),

which provides that a “firearm” is “a weapon from which a dangerous projectile

may be propelled” (emphasis added), the Brown Court concluded “that a handgun

that is designed to expel a dangerous projectile, and that could do so but for a

missing firing pin and spring, qualifies under MCL 750.222(b) as a weapon from

which a dangerous projectile may be propelled.” Brown, 249 Mich App 386.

The statutory language is broad and is clearly intended to
keep any and all handguns out of the hands of convicted felons. In
our opinion, a handgun need not be currently operable in order to
qualify as a “firearm” for purposes of the felon in possession statute.
If that were the case, then convicted felons could legitimately
purchase, sell, receive, and distribute handguns on a regular basis, as
long as the firing pins had been temporarily removed from those
handguns. We cannot conclude that the Legislature intended such a
result when it drafted the felon in possession statute. [Id.]

The Brown Court further rejected the defendant’s argument that this

Court’s decision in Hill mandated a holding that an inoperable handgun was not a

“firearm” for purposes of the felon in possession statute:

We conclude that our holding in the instant case is consistent
with the Hill decision, in which the Court noted the “legislative
intent to distinguish the firearm from other potentially dangerous
weapons,” and cited appellate decisions which “found the operability
of a gun to be irrelevant for a conviction [because] a contrary result
would thwart the deterrent purpose” of the laws concerning the use
and possession of firearms. [Hill, 433 Mich] 476, quoting People v
Boswell, 95 Mich App 405, 408-409; 291 NW2d 57 (1980).
[Brown, 249 Mich 387.]

In short, the Brown Court explained why its holding was consistent with

Hill. We find no basis in Hill to question the Brown Court’s analysis or the Court

of Appeals longstanding interpretation of “firearm.”

13

 Of the long line of cases left undisturbed by Hill, a case that offers

particularly useful analysis is Boswell, supra. In that case, the defendant pleaded

guilty of armed robbery, MCL 750.529; and felony-firearm. On appeal, he argued

that the gun used in the robbery was temporarily inoperable because it was

“jammed” and thus was not a “firearm” under the definition contained in MCL

8.3t. MCL 8.3t defines “firearm” in a manner that is very similar to the definition

contained in MCL 750.222(d). Specifically, MCL 8.3t provides that a “firearm” is

“any weapon from which a dangerous projectile may be propelled by using

explosives, gas or air as a means of propulsion, except any smooth bore rifle or

handgun designed and manufactured exclusively for propelling BB’s not

exceeding .177 calibre by means of spring, gas or air.”

The Boswell Court explained its interpretation of the statutory definition:

We believe the statute demonstrates a legislative intent to
distinguish the firearm from other potentially dangerous weapons by
describing its general construction and manner of use. The gun
used in the instant case clearly falls within the above definition.
Furthermore, this Court found the operability of a gun to be
irrelevant for a conviction under MCL 750.227; MSA 28.424,
carrying a concealed weapon, in People v Clark, 24 Mich App 440;
180 NW2d 342 (1970), and People v Jiminez, 27 Mich App 633; 183
NW2d 853 (1970). The same reasoning is equally apt here, and a
contrary result would thwart the deterrent purpose of the felony-
firearm statute. [Boswell, 95 Mich App 409 (emphasis added).]

The Boswell analysis is useful in analyzing the text of the provision at issue

here, MCL 750.222(d). The statute defines a “firearm” as “a weapon from which

a dangerous projectile may be propelled by an explosive, or by gas or air.” This

language serves to distinguish firearms, which are a particular type of weapon,

14

from weapons generally. A firearm is designed and used to expel dangerous

projectiles by an explosive, gas, or air. By contrast, other weapons, such as knives

and clubs, are not designed or used in this manner. It is the design and

construction of a firearm, rather than its current state of operability, that

distinguish it from other weapons.

We decline to insert an operability requirement into the statute. We can

find no basis to conclude that the phrase “may be propelled” somehow requires

that the weapon be reasonably and readily operable. The statute simply does not

contain any language supporting such a rule. In short, the statutory definition of

“firearm” is descriptive. It describes the type of weapon that constitutes a

“firearm,” so as to distinguish it from other types of weapons. It does not require

the current operability of the weapon.

This conclusion is supported by definitions of other terms contained in

MCL 750.222. The surrounding provisions use the term “firearm” as a predicate

or base term to define specific types of firearms. Thus, the term “firearm” is used

to define the terms “pistol,” MCL 750.222(e); “shotgun,” MCL 750.222(h); and

“rifle,” MCL 750.222(j). This use of “firearm” to define other, more specific

types of firearms explains why the Legislature used general language to describe

the manner of use or operation of a “firearm,” i.e., that it is “a weapon from which

a dangerous projectile may be propelled,” so that the Legislature could then use

this general descriptive term to define more specific types of firearms. We are

15

bound to accord this clear meaning to the statutory text rather than invent an

operability requirement that simply is not there.6

Our conclusion is further supported by a key difference between the

language used to define “firearm” in MCL 750.222(d) and the language used in

another definition of that term in MCL 752.841. The latter statutory definition

applies to offenses that prescribe the duties of a person who discharges a firearm

and thereby injures another person. For purposes of those offenses, MCL 752.841

defines the word “firearm” as “any weapon or device from which is propelled any

missile, projectile, bullet, shot, pellet or other mass by means of explosives,
6
Although it is not necessary to our analysis, we note that the New Jersey
Supreme Court has construed very similar statutory language as not requiring
proof of operability. In State v Gantt, 101 NJ 573; 503 A2d 849 (1986), the court
interpreted a statutory definition of “firearm” that referred to “‘any gun, device or
instrument in the nature of a weapon from which may be fired or ejected any solid
projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious
thing, by means of a cartridge or shell or by the action of an explosive or the
igniting of flammable or explosive substances.’” Id. at 582 (emphasis added).
The New Jersey Supreme Court held that the statutory phrase “‘from which may
be fired’” did not require proof of operability. Rather, the Court concluded that
the statute merely required proof that the weapon was originally designed to
deliver a lethal force.

See also Williams v State, 61 Ga 417, 418 (1878):

An object once a pistol does not cease to be by becoming
temporarily inefficient. Its order and condition may vary from time
to time, without changing its essential nature or character. Its
machinery may be more or less perfect; at one time it may be loaded,
at another empty; it may be capped or uncapped; it may be easy to
discharge or difficult to discharge, or not capable, for the time, of
being discharged at all; still, while it retains the general
characteristics and appearance of a pistol, it is a pistol, and so in
common speech would it be denominated.

16

compressed air or gas or by means of springs, levers or other mechanical device.”

(Emphasis added.) MCL 752.841 makes clear that the Legislature knows how to

define a “firearm” as a weapon from which a projectile “is propelled.” We believe

that the Legislature would not have used the phrase “may be propelled” in MCL

750.222(d) to require operability when it could have instead used the phrase “is

propelled” as it did in MCL 752.841.

Therefore, because we can find no textual support for an operability

requirement, we must adhere to the Legislature’s judgment not to adopt such a

rule.7

Moreover, were we to extend Hill’s operability requirement to the crimes of

felon in possession and felony-firearm, it could well encourage defendants to

discard or secrete their weapons in order to impede the prosecution from being

able to prove that the weapon could reasonably and readily be made to fire, or to

separate their weapons into multiple parts for the same purpose. After disposing

7
While the statute does not contain an operability requirement, it is
possible that a firearm could be so substantially redesigned or altered that it would
cease to be a “firearm” under the statutory definition. It would no longer be a
weapon whose design was such that a dangerous projectile “may be propelled” by
an explosive, gas, or air. For example, an antique cannon plugged with cement on
display in a park would not constitute a “firearm” under MCL 750.222(d). That is
because the cannon has been converted into an ornamental display, and it is no
longer the type of weapon that is used or designed to propel dangerous projectiles
by an explosive or by gas or air. We emphasize, however, that the operability of
the weapon is not the statutory test; rather, the question is whether the weapon has
been so substantially redesigned or altered that it no longer falls within the
category of weapons described in MCL 750.222(d).

17

of or hiding the weapon, the defendant or—if the defendant did not wish to

testify—a defense witness could simply take the stand and testify that the gun was

inoperable, and the prosecution would then have no means to establish the

contrary beyond a reasonable doubt. Id.8

Indeed, our Court of Appeals made this very point in Pierce, 119 Mich App

782-783:

If the prosecution must prove operability, a defendant could
not be convicted of felony-firearm if the gun is never recovered even
if the victim testifies that he saw the gun. A prime concern behind
the felony-firearm statute is to protect the victim. The victim is no
less frightened if the gun (most likely unknown to him) just happens
to be inoperable. The state clearly intends to protect such a victim.

[Citation omitted.]

An extratextual operability requirement would also undermine the

legislative intent to deter the possession of firearms by convicted felons and by

persons committing felonies. That a gun is inoperable does not alleviate the

extreme danger posed by its possession in these circumstances.

In short, expanding an operability requirement to the offenses of felony-

firearm and felon in possession of a firearm would defeat the fundamental

legislative interest in deterring the possession of firearms.9 Whether operable or

8
See also New Jersey v Gantt, 101 NJ 586 (stating that an operability
requirement “would invariably invite assertions of inoperability by defendants
hopeful of gaining some advantage in the murky waters of law characteristic of
rebuttable presumptions and shifting burdens of proof”).
9
In an appropriate case, this Court’s holding in Hill may require
reexamination. We decline to overrule Hill in this case because: (1) the defendant
(continued…)

18

not, firearms pose a grave danger to members of the public when they are

possessed by convicted felons or persons committing felonies.

IV. Response to the Dissent

In her dissent, Justice Kelly articulates her preferred interpretation of the

statutory definition of “firearm” as containing an operability requirement. Justice

Kelly then asserts that because the majority does not adopt her interpretation, we

have somehow abandoned our judicial philosophy of applying the plain meaning

of a statutory text. Post at 13. She further contends that we have violated our

“‘plain text philosophy,’” post at 16, because, unlike Justice Kelly, we have not

focused our analysis on a federal statute that has no application to this case.

It should go without saying that our judicial philosophy does not require

every member of this Court to agree with Justice Kelly’s interpretation of a text. It

is therefore unfortunate that Justice Kelly has resorted to the classic logical fallacy

of a false choice: she seems to contend that we must either (1) agree with her

interpretation of the text or (2) abandon our entire philosophy. We decline to

(…continued)

in Hill was convicted of an offense, possession of a short-barreled shotgun, that is

not at issue here; (2) the definition of “firearm” construed in Hill, while very

similar to the definition here, is located in a different statutory section, MCL 8.3t;

(3) the Hill Court narrowed its holding considerably by declining to construe the
term “firearm” for other firearms offenses; and (4) the Hill Court discussed the
Court of Appeals longstanding construction of the term “firearm” in the felony-
firearm context without expressing any disapproval of that construction.
Nonetheless, we recognize that an argument can be made that the term “firearm”
should have the same meaning for different offenses, and we will consider this
issue further when and if it arises in an appropriate case.

19

dignify this argumentative sleight of hand by further responding to it, other than to

emphasize that we have endeavored to apply the text as written and that we stand

by our interpretative analysis as set forth above.

Justice Kelly also argues that the rule of lenity and the constitutional

principle of fair warning require us to construe the statute in favor of the

defendant. Yet Justice Kelly herself has recently acknowledged in another case

that “fair warning is given only if an ambiguity in a criminal statute is construed to

apply to conduct that the statute clearly designates as criminal.” People v Yamat,

475 Mich 49, 66; 714 NW2d 335 (2006) (Kelly, J., dissenting), citing United

States v Lanier, 520 US 259, 266; 117 S Ct 1219; 137 L Ed 2d 432 (1997).

Despite her recent observation in Yamat, Justice Kelly here has failed to identify

an ambiguity in the statutory definition of “firearm.”

As discussed, we believe the statutory definition of “firearm” is clear.

MCL 750.222(d) plainly provides that a weapon is a firearm if it is the type of

weapon that propels dangerous projectiles by an explosive or by gas or air.

Moreover, as noted earlier, the existing Court of Appeals case law provides that

inoperability is not a defense to either felony-firearm or felon in possession of a

firearm. See Thompson and Brown and the cases they cite.

Amazingly, Justice Kelly relies for her fair warning argument on Hill, in

which this Court (1) addressed an offense, possession of a short-barreled shotgun,

that is not at issue in this case, (2) expressly declined to extend its holding to

felony-firearm, and (3) acknowledged the Court of Appeals longstanding

20

interpretation of the felony-firearm statute as not containing an inoperability

defense. Justice Kelly’s fair warning argument thus collapses of its own weight in

light of her reliance on Hill.

V. Conclusion

The presence of the word “may” in MCL 750.222(d) indicates the

Legislature’s intention that a weapon be considered a firearm if it was designed or

intended to propel a dangerous projectile by means of an explosive, gas, or air. In

the absence of a legislative enactment of an operability requirement, we hold that

there is no operability requirement for the offenses of felony-firearm and felon in

possession of a firearm. Because there is no dispute that the weapon possessed by

defendant in this case was the type of weapon that was designed to propel a

dangerous projectile by an explosive, gas, or air, we affirm the judgment of the

Court of Appeals and affirm defendant’s convictions of felony-firearm and felon

in possession of a firearm.

Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

21

 STATE OF MICHIGAN

SUPREME COURT

THE PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 128376

DARRYL PEALS,

Defendant-Appellant.

_______________________________

WEAVER, J. (concurring).

I concur in the result of the majority opinion that affirms defendant’s

convictions of felon in possession of a firearm, MCL 750.224f(1); and possession

of a firearm during the commission of a felony, MCL 750.227b.

Both convictions in this case involve the statutory definition of “firearm,”

MCL 750.222(d). MCL 750.222(d) defines “firearm” as “a weapon from which a

dangerous projectile may be propelled by an explosive, or by gas or air. Firearm

does not include a smooth bore rifle or handgun designed and manufactured

exclusively for propelling by a spring, or by gas or air, BB's not exceeding .177

caliber.”
 I write separately because the majority’s interpretation of the word “may”

to exclude consideration of a weapon’s operability and require only consideration

of a weapon’s design is both overinclusive and underinclusive.

A fair reading of the phrase “may be propelled” does not require that the

weapon be currently capable of propelling a dangerous projectile. It only requires

that a projectile could be propelled from the weapon at some time. Thus, contrary

to the majority’s suggestion, ante at 7, a “simple pipe” could qualify as a firearm

under the plain terms of the statute. A simple pipe can in fact be made to propel a

dangerous projectile with, for example, air. That does not mean that any felon

caught carrying a simple pipe should be charged with felony-firearm. But if the

felon is carrying the components of a functional blow gun or pipe gun, the simple

pipe might be capable of propelling a dangerous projectile. I would not summarily

exclude such weapons from the definition of “firearm.”

I would hold that a weapon from which a dangerous projectile may be

propelled by an explosive, or by gas or air, and which is not permanently

inoperable, qualifies as a firearm under MCL 750.222(d). Rather than injecting a

design component into, or excluding an operability component from, the definition

of “firearm,” I would continue to review the facts of each case in light of the clear

language of the statutory definition of “firearm.”

The testimony presented suggested that the weapon found in defendant’s

possession could have been repaired to allow it to fire one round. The officer who

examined the gun when it was received in evidence testified, “If it had the proper

2

stop but this portion here of the slide was broken you’d get one round off.” While

there was extensive testimony regarding the weapon’s state of disrepair, there was

no testimony at trial to contradict the potential that replacing some pieces may

have allowed the weapon to fire.

Thus, the evidence presented at trial qualifies the weapon found in

defendant’s possession as a “firearm” under MCL 750.222(d). For that reason, I

would affirm the judgment of the Court of Appeals that affirmed the defendant’s

jury convictions.

Elizabeth A. Weaver

3

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 128376

DARRYL PEALS,

Defendant-Appellant.

KELLY, J. (dissenting).

This case calls on us to determine the meaning of “firearm” as defined in

MCL 750.222(d). The majority has given it a meaning not supported by the text

of the statute, rendering the statute constitutionally infirm. As the majority now

construes it, the statute violates the rule of lenity and the requirements of fair

warning. Because of these errors, I must dissent. I would reverse the judgment of

the Court of Appeals and remand the case for a new trial.

RELEVANT FACTUAL BACKGROUND

Defendant spotted pieces of metal lying in the grass. On closer inspection,

he noted that they were parts of a handgun. He pieced them together but testified

that the mechanism could not be made to operate as a firearm. He stated that he

decided to keep it in hopes of selling it later as scrap metal, which he collected and

sold occasionally for extra money. Defendant testified that he would not have

picked up a real gun.
 Twenty minutes after defendant picked up the handgun parts, police

officers stopped the car in which defendant was a passenger for a traffic violation.

When asked, defendant informed an officer that he had the scrap-metal gun in his

pocket. He told the officer that it did not work. After arresting him, the officer

inspected the gun. She noticed that it had sustained significant damage and had no

ammunition clip. She described its slide as “raggedy.” When the officer again

examined the gun at the precinct, she removed the safety, and the gun fell apart in

her hands. She and her partner laughed at its poor condition.

The officer in charge of the case forwarded the gun to the firearm

identification and explosive disposal unit for testing. Tests determined that the

gun would not fire in the condition that it was in. The firing-pin assembly was

entirely missing. The magazine was missing. And the top portion of the slide was

cracked and missing.

Despite these facts, the prosecution charged defendant with being a felon in

possession of a firearm (felon in possession)1 and carrying or possessing a firearm

when committing or attempting to commit a felony (felony-firearm).2 At trial,

attention focused on the operability of the scrap-metal gun.

A police officer reiterated that many pieces were missing from the gun,

including the firing-pin assembly, the magazine, some springs, and part of the

1
MCL 750.224f.

2
MCL 750.227b.

2

slide. He also noted that what remained of the slide was cracked. He concluded

that the gun would not function as it was designed to function. When specifically

asked whether, if the missing firing-pin assembly and springs were replaced, the

gun could be made to fire, the officer equivocated. Because of the broken slide, he

stated that he did not know if the gun could ever chamber a round and that the

slide likely could never close properly. The officer stated that, if someone could

get a round off, the gun certainly could not fire a second shot.

At the close of trial, the judge instructed the jury that a handgun need not be

currently operable in order to qualify as a firearm. When asked for clarification on

this point, the judge reiterated that a handgun need not be currently operable to be

qualified as a firearm for purposes of felon in possession and felony-firearm. The

jury returned a guilty verdict on both counts.

Defendant appealed to the Court of Appeals, which decided the case

without oral argument. It stated that current inoperability of a firearm is not a

defense to felon in possession or felony-firearm. And it concluded that, on the

basis of its reading of the facts, the evidence did not show that the gun was

unusable as a firearm. The Court of Appeals affirmed both convictions. People v

Peals, unpublished memorandum opinion of the Court of Appeals, issued

February 15, 2005 (Docket No. 251406). We granted leave to appeal. 474 Mich

886 (2005).

3

 PEOPLE V HILL3

Neither the felon-in-possession statute nor the felony-firearm statute

defines the term “firearm,” but it is defined elsewhere in the Michigan Penal Code.

MCL 750.222(d) provides: “‘Firearm’ means a weapon from which a dangerous

projectile may be propelled by an explosive, or by gas or air. Firearm does not

include a smooth bore rifle or handgun designed and manufactured exclusively for

propelling by a spring, or by gas or air, BB’s not exceeding .177 caliber.”

Although this Court has not before been asked to determine the meaning of MCL

750.222(d), we did discuss a strikingly similar statute in People v Hill.

The two defendants in Hill faced the charge of possession of a short-

barreled shotgun. MCL 750.224b. Each possessed separate parts that together

made one shotgun. Hill, 433 Mich 466. To determine the meaning of the term

“shotgun,” the Court turned to the definition of “firearm.” MCL 750.222 did not

contain a definition of “firearm” at that time. Therefore, the Court referred to

MCL 8.3t, which provides:

The word “firearm,” except as otherwise specifically defined
in the statutes, shall be construed to include any weapon from which
a dangerous projectile may be propelled by using explosives, gas or
air as a means of propulsion, except any smooth bore rifle or
handgun designed and manufactured exclusively for propelling BB’s
not exceeding .177 calibre by means of spring, gas or air.

3
433 Mich 464; 446 NW2d 140 (1989).

4

 The Court stated that the words of a statute should be read in the way that

best harmonizes with the ends the Legislature sought to achieve. Hill, 433 Mich

474 n 8. The following purpose was noted for the firearm laws:

“Statutes making it unlawful to have or carry weapons are
designed to suppress the act or practice of going armed and being
ready for offense or defense in case of conflict with another, and to
outlaw instruments ordinarily used for criminal and improper
purposes. . . . The statutes should receive a reasonable construction
in accord with the purpose of the legislature and in the light of the
evil to be remedied, and they should be construed with the thought in
mind that they are aimed at persons of criminal instincts and for the
prevention of crime . . . .

* * *

“A deadly weapon does not cease to be such by becoming
temporarily inefficient, nor is its essential character changed by
dismemberment if the parts, with reasonable preparation, may be
easily assembled so as to be effective.” [Id. at 473, quoting 94 CJS,
Weapons, § 2, pp 479-480, and § 6, p 489 (emphasis added).]

Hill reasoned that, to effectuate this intent, the statute should not be limited to the

narrowest of circumstances. Therefore, the Court concluded that a temporarily

inoperable shotgun remains within the meaning of the term “firearm.” This is

because the temporarily inoperable shotgun maintains its “man-killing” status. Id.

at 477. The Court concluded: “Thus, temporarily inoperable firearms which can

be made operable within a reasonable time fall within the purview of the statutes

that govern the use and possession of firearms.” Id.

The majority claims that Hill is “not instructive” because the Hill Court did

not purport to interpret the concealed weapons and felony-firearm statutes. Ante at

10. I disagree. Whereas it is true that Hill is not controlling in this case, it is

5

certainly instructive. MCL 8.3t and MCL 750.222(d) are nearly identical. The

central components of the definitions, “[a or any] weapon from which a dangerous

projectile may be propelled,” are identical. It is the words “may be propelled” that

are the central focus of the case before us. At the very least, the interpretation of

the identical words in a related statute should provide the Court guidance in

reaching a conclusion in this case. The majority’s contentions to the contrary are

puzzling.4

This Court should grant Hill its appropriate value as strongly influential

precedent and reach the same conclusion as Hill did. That is, a weapon qualifies

as a firearm only if it can be made operable within a reasonable time. This is true

because the general intent behind the felon-in-possession statute and the felony-

firearm statute is the same as the intent for the statute concerning possession of a

short-barreled shotgun. Hill noted as much. “Statutes making it unlawful to have

or carry weapons are designed to suppress the act or practice of going armed and

being ready for offense or defense in case of conflict with another . . . .” Hill, 433

Mich 473 (emphasis added; citation omitted).

A person carrying a gun that cannot be reasonably and readily repaired is

not “ready for offense or defense in case of conflict.” Instead, that person is

4
Almost simultaneously with this decision, the majority specifically stated
that “absolutely identical phrases in our statutes” should have identical meanings.
Paige v Sterling Hts, 476 Mich ___, ___; ___ NW2d ___ (Docket No 127912,
decided July 31, 2006, slip op at 25.)

6

similarly situated to someone carrying a stick, a club, or a piece of metal. A

person carrying a piece of iron rebar could not be convicted of felon in possession

or felony-firearm, regardless of his or her intended use for that rebar. There is no

reason to treat a person carrying a hunk of scrap metal that formerly functioned as

a firearm any differently. Neither can be used to shoot someone, which is the

man-killing status intrinsic in a firearm and which is what the Legislature intended

to regulate.5

The majority claims that, unless it reads a “design” requirement into the

statute, a piece of pipe could constitute a firearm. Ante at 7. But, under the

majority’s interpretation of MCL 750.222(d), a piece of pipe that had once been

part of a gun, for instance the barrel of a shotgun, would also constitute a firearm.

This would be true even if there is no significant difference between the two pipes.

The majority asserts that it makes little sense to rule that a piece of pipe constitutes

a firearm. I question then, what sense would there be in finding that a former gun

barrel constitutes a firearm? I submit that there is no sense in the majority’s

design requirement and that the Legislature never intended it to exist.

5
The majority claims that the inoperability of a firearm does not alleviate
the extreme danger posed by its possession. This statement clearly is not true.
Given that such a gun cannot be made to fire within a reasonable time, it does not
pose the danger the Legislature sought to regulate. Allowing for an inoperability
defense is the only way to effectuate the intent of the Legislature, which was to
regulate the killing ability of firearms. An inoperable firearm no longer has that
killing ability. The majority provides no basis for its assertion that the Legislature
intended the statutes in question to protect people from a gun that could not fire.

7

 In addition to adding a “design” requirement to the language of MCL

750.222(d), the majority has added a “redesign” defense to the crime. Ante at 17 n

7. It has been obliged to do so to avoid an absurd result. If it did not, certain

people would be guilty of felon in possession by sitting near or leaning on a

plugged cannon on display in a park.

But in fabricating its “redesign” defense, the majority has reverted to a

defense based on operability, albeit one available only in special circumstances.

Consider the cannon in the park. The sole “redesign” that has occurred and that is

relevant is that which has rendered the cannon incapable of firing a projectile. The

majority offers no explanation or support from the text of the statute for reading

into the statute this redesign/limited operability defense. By contrast, Hill offers

ample support for allowing all defendants to raise an inoperability defense when

appropriate.

The majority’s discussion of the cannon in the park implies that a firearm

can be “redesigned” to no longer constitute a firearm. But the majority fails to

indicate at what point a “redesigning” occurs. And it fails to explain why a

“redesigning” did not occur when the gun in this case was extensively damaged.

At the very least, under the majority’s ruling, the question of whether the scrap-

metal gun was sufficiently “redesigned” should be a question of fact for the jury.

The majority should explain what has justified it to take this question from the

jury. Why has the case not been remanded for trial?

8

 Today’s interpretation of MCL 750.222(d) raises more questions than it

answers. Instead of raising unanswered questions by inventing a new

redesign/partial operability defense as the majority has done, I would continue to

follow the well-reasoned rule of law articulated in Hill.

There is strong evidence that defendant, when arrested, carried no more

than pieces of scrap metal that were once parts of a firearm. If this is true, they do

not meet the definition of “firearm” in MCL 750.222(d). If the gun could not

reasonably and readily be repaired, its essential character had changed. If it could

not “‘be easily assembled so as to be effective,’” it would no longer be a firearm.

See Hill, 433 Mich 473 (citation omitted).

Whether a gun is more than temporarily inoperable and therefore not a

firearm is a question of fact that should be left to the jury. People v Gardner, 194

Mich App 652, 655; 487 NW2d 515 (1992); see also Hill, 433 Mich 480. In this

case, the trial court instructed the jury that a handgun need not be currently

operable to qualify as a firearm. This instruction was insufficient to meet the

requirements of MCL 750.222(d) and Hill. Anything more than temporary

inoperability is a defense to a crime involving a firearm.6

6
The majority contends that allowing an inoperability defense will
encourage suspects to discard or secrete their weapons. A desire to hide a weapon
exists in every case. Rare indeed is a felon who would gladly turn his or her
weapon over to the police after having used it to commit a crime.

If the majority is implying that a felon is encouraged to disable his or her
weapon by my interpretation, I would state that there is no suggestion in the case
(continued…)

9

 Defendant did not object to the trial court’s instruction and did not ask for

an instruction on inoperability.7 However, the jury was improperly instructed,

and the error constituted plain error requiring reversal. There are three

requirements under the plain error rule: (1) the error must have occurred, (2) it

must have been clear or obvious, and (3) it must have adversely affected the

defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d

130 (1999). Reversal is required if the error resulted in the conviction of an

actually innocent defendant or gravely and adversely affected the fairness,

integrity, or public reputation of the judicial proceedings. Id., quoting United

States v Olano, 507 US 725, 736-737; 113 S Ct 1770; 123 L Ed 2d 508 (1993).

In this case, it is clear and obvious that the trial court failed to give an

instruction on the defense of inoperability of the firearm. This adversely affected

defendant’s substantial right to a properly instructed jury and his substantial right

to present a defense. Instructions to a jury must include material issues, defenses,

or theories as long as there is evidence to support them. People v Reed, 393 Mich

342, 349-350; 224 NW2d 867 (1975). In this case, the operability of the firearm

(…continued)

before us that defendant disabled a firearm. I note that any proof that a defendant

disabled a weapon would indicate that it was reasonably and readily repairable at

the time of the crime.

7
The standard criminal jury instructions provide such an instruction. CJI2d
11.6 states: “It is not against this law to carry a gun that is so [out of repair / taken
apart with parts missing / welded together / plugged up] that it is totally unusable
as a firearm and cannot be easily made operable.”

10

was crucial. Whether defendant possessed an actual firearm or a hunk of scrap

metal was the central question. Because an instruction on this important issue

was omitted, the jury instructions were inadequate to protect defendant’s

substantial right to a properly instructed jury. Id.

It is basic law that a defendant must be allowed to confront the charges

against him or her and defend against them. “The right of an accused in a

criminal trial to due process is, in essence, the right to a fair opportunity to defend

against the State’s accusations.” Chambers v Mississippi, 410 US 284, 294; 93 S

Ct 1038; 35 L Ed 2d 297 (1973). In not instructing the jury on the inoperability

of a firearm here, the court robbed defendant of his ability to fully defend against

the state’s accusation that he possessed a firearm. Therefore, he was not allowed

to present an appropriate defense. Given that this raises due process questions,

the failure adversely affected defendant’s substantial rights.

This plain error requires reversal. It meets both of the possible reasons for

reversal articulated in Carines. First, because there was significant evidence that

defendant possessed mere scrap metal, there is a legitimate chance that defendant

is actually innocent. Second, failure to instruct the jury on the issue that was

central to the case robbed defendant of his defense. Because this raises due

process concerns, the error affects the fairness and the public reputation of the

proceedings. Under such circumstances, defendant is entitled to a remand for a

new trial. Carines, 460 Mich 763.

11

 THE MEANING THE MAJORITY READS INTO MCL 750.222(d)

IS NOT SUPPORTED BY ITS TEXT

As indicated before, MCL 750.222(d) provides, in part: “‘Firearm’ means

a weapon from which a dangerous projectile may be propelled by an explosive, or

by gas or air.” The majority seizes on the phrase “may be propelled” as

distinguishing firearms from other weapons. It concludes that “may be propelled”

refers to the design and manner of use of the weapon. To reach the majority’s

conclusion requires reading the word “may” to mean “designed to.” The majority

reads the statute as if it states: “‘Firearm’ means a weapon from which a

dangerous projectile is designed to be propelled . . . .”

None of the common definitions of “may” supports such a reading. The

Random House Webster’s College Dictionary8 (2001) defines “may” as an

auxiliary verb:

1. (used to express possibility): It may rain. You may have been
right. 2. (used to express opportunity or permission): You may
enter. 3. (used to express contingency, esp. in clauses indicating
condition concession, purpose, results, etc.): strange as it may seem;
Let us concur so that we may live in peace. 4. (used to express wish
or prayer): Long may you live! 5. Archaic. (used to express ability
or power) — Idiom. 6. be that as it may, whether or not that is
true. [Emphasis original.]

The word “design” or “designed” is never used in these definitions. Nor can

“designed” be read into them. It is simply not there.

8
There was no change in the dictionary’s treatment of “may” between the
1997 edition used by the majority and the 2001 edition.

12

 The majority contends that the third and fourth definitions of “may” are

consistent with a “design” requirement. Even a casual reading of these definitions

will show the reader that this is untrue. Moreover, it should be noted that the

majority did not include the sentences offered by the dictionary as typical

examples of usage of the word. An attempt to place “designed” into the

dictionary’s sentences will show that “design” cannot replace “may.” The

examples from the third definition would read: “strange as it [designed] seem;

Let us concur so that we [designed] live in peace.” The example from the fourth

definition would read: “Long [designed] you live!”

This demonstrates how untenable and extraordinary the majority’s claims

regarding the meaning of “may” are. I have not selected sentences that illustrate

usages of “may” that are particularly inapplicable. If sentences using all possible

dictionary usages were included here, it would become apparent that none fits the

majority’s reading of “may.” The sensible conclusion must be that the majority’s

reading of “may” to mean “designed” is not plausible.

The majority has frequently claimed that it does no more than read the text

of a statute in order to interpret it.9 But here it appears to abandon that philosophy.

It adds meaning to the statute that the Legislature chose not to give and that no

dictionary furnishes.

9
I encourage readers to compare the majority’s rationale in this case to the
rhetoric it used in Paige, 476 Mich ___.

13

 The majority claims that no language in the statute supports an operability

requirement. But, in fact, the very first definition of “may” supports an

inoperability defense. “May” is used to express possibility. Random House

Webster’s College Dictionary (2001). Using this definition of “may” in MCL

750.222(d), we find that, to be a firearm, a weapon must possess the possibility of

propelling a dangerous projectile. Such a possibility is realized only when the

weapon is reasonably and readily made to fire. Therefore, in contrast to the

majority’s “design” requirement, the text of MCL 750.222(d) actually supports an

operability requirement.

It is only by ignoring the text of the statute and through a tortured definition

of the word “may” that the majority reaches its result. In reality, the majority is

interpreting the law to read like what it wishes the Legislature had written. Yet it

is well settled that, when construing a statute, a reviewing court is supposed to

assume that the words chosen by the Legislature are intentional. We should not

speculate that the Legislature inadvertently used one word or phrase when it

intended another. Detroit v Redford Twp, 253 Mich 453, 456; 235 NW 217

(1931).

The Legislature certainly could have written the language “designed to be

propelled” into MCL 750.222(d) had it wished to do so. 18 USC 921(a)(3)

provides an example in which Congress did just that:

The term “firearm” means (A) any weapon (including a
starter gun) which will or is designed to or may readily be converted
to expel a projectile by the action of an explosive; (B) the frame or

14

 receiver of any such weapon; (C) any firearm muffler or firearm
silencer; or (D) any destructive device. Such term does not include
an antique firearm. [Emphasis added.]

The majority reads MCL 750.222(d) as having almost the same breadth as

18 USC 921(a)(3). This is inappropriate. 18 USC 921(a)(3) has been in effect

since at least 1968. Had the Michigan Legislature intended to enact a statute

similar to 18 USC 921(a)(3), it could have copied the language from the federal

statute. But it chose not to do so. Its choice should be respected.

Moreover, the Michigan Legislature has fully demonstrated its familiarity

with 18 USC 921(a)(3). It wrote MCL 380.1311, which concerns the expulsion

and suspension of students. Contained in the statute is a definition of “firearm.” It

provides: “‘Firearm’ means that term as defined in section 921 of title 18 of the

United States Code, 18 USC 921.” MCL 380.1311(11)(d). The Legislature chose

this definition of “firearm” for MCL 380.1311(11)(d) but not for MCL 750.222(d),

a fact that severely undermines the majority’s argument in this case.

We have recognized that “[c]ourts cannot assume that the Legislature

inadvertently omitted from one statute the language that it placed in another

statute, and then, on the basis of that assumption, apply what is not there.”

Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 510 NW2d 76 (1993). But

the majority does just that, today. In MCL 380.1311(11)(d), the Legislature used

the term “designed” by adopting the definition contained in 18 USC 921(a)(3). In

MCL 750.222(d), the Legislature chose not to use that definition or the word

“designed.” The majority assumes that this choice was a mistake by the

15

Legislature and reads “designed” into MCL 750.222(d). This is contrary to well-

established rules for interpreting a statute and violates the majority’s claimed

“plain text philosophy.”

The majority characterizes 18 USC 921(a)(3) as irrelevant. But that it is

relevant becomes apparent when we consider that the Michigan Legislature

specifically adopted the language of 18 USC 921(a)(3) as its own in MCL

380.1311(11)(d). The majority has not and cannot explain what renders MCL

380.1311(11)(d) irrelevant. It has become part of Michigan law. Well-established

rules of statutory construction require that we pay respect to legislative

enactments. The Michigan Legislature included a “design” requirement in MCL

380.1311(11)(d). It did not include it in MCL 750.222(d). We cannot assume that

the Legislature omitted from one statute through inadvertence the language it

placed in another. Farrington, 442 Mich 210. I respect its choice. The majority

does not.

I would respect the difference between MCL 750.222(d) and MCL

380.1311(11)(d). And I would not read the definitions to be equivalent. Because

the Legislature chose to leave “designed” out of MCL 750.222(d), we should do

likewise. To fail to do so is to ignore the Legislature’s choice.

Instead of focusing on the Legislature’s choice of words in MCL

380.1311(11)(d), the majority relies in its analysis on the wording of other statutes

that define “dangerous weapon.” For instance, the home invasion statute, MCL

750.110a(1)(b), provides:

16

 “Dangerous weapon” means 1 or more of the following:

(i) A loaded or unloaded firearm, whether operable or
inoperable.

(ii) A knife, stabbing instrument, brass knuckles, blackjack,
club, or other object specifically designed or customarily carried or
possessed for use as a weapon.

(iii) An object that is likely to cause death or bodily injury
when used as a weapon and that is used as a weapon or carried or
possessed for use as a weapon.

(iv) An object or device that is used or fashioned in a
manner to lead a person to believe the object or device is an object
or device described in subparagraphs (i) to (iii). [Emphasis added;
see also MCL 600.606 and MCL 766.14.]

In the home invasion statute, the Legislature obviously wished to classify as

dangerous more than just firearms. It wanted to prohibit someone from

perpetrating a home invasion using any weapon that could threaten harm to the

occupants. Hence, it included both operable firearms and inoperable firearms.

Although an inoperable firearm cannot fire a shot, it can be used to threaten and

intimidate a person during a home invasion. Therefore, the inclusion of inoperable

firearms in MCL 750.110a is wholly consistent with Hill’s interpretation of MCL

750.222(d) and with the intent Hill recognized in criminal statutes involving

firearms. Hill, 433 Mich 473.

By contrast, the majority’s definition of the word “firearm” is inconsistent

with MCL 750.110a(1)(b), MCL 600.606(2)(b) and MCL 766.14(4)(b). The

majority reads “firearm” to include inoperable firearms. This definition of

“firearm” renders the specific inclusion of inoperable firearms in MCL

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750.110a(1)(b), MCL 600.606(2)(b) and MCL 766.14(4)(b) unnecessary,

repetitive, and nugatory. If the Legislature intended the word “firearm” to include

both operable and inoperable firearms, it would not have added the term

“inoperable” to these statutes.

The use of “inoperable” in MCL 750.110a demonstrates that the

Legislature knew how to write statutes to include inoperable firearms. But, when

it wrote MCL 750.222(d), it decided not to do so. Again, the majority ignores that

the Legislature made this choice. Rather, it replaces the words of the statute with

its own. In so doing, it creates judicially a legislative policy preference, something

the majority has repeatedly claimed to abhor.10

The majority all but concedes that its interpretation of “firearm” renders

part of MCL 750.110a(1)(b) redundant. But it claims that my interpretation would

render the statute more redundant. The claim is misleading. Under Hill, a firearm

is only a firearm if it can propel a qualifying projectile. If the Legislature wished

to include inoperable firearms in the statute, it should have said so. In MCL

750.110a(1)(b), the Legislature had that intention, and it specifically included

10
See Rory v Continental Ins Co, 473 Mich 457, 470-471; 703 NW2d 23
(2005); Devillers v Auto Club Ins Ass’n, 473 Mich 562, 591-592; 702 NW2d 539
(2005); Henry v Dow Chemical Co, 473 Mich 63, 88 n 16; 701 NW2d 684 (2005);
Mayor of Lansing v Pub Service Comm, 470 Mich 154, 161, 164; 680 NW2d 840
(2004); People v Hawkins, 468 Mich 488, 500; 668 NW2d 602 (2003); Terrien v
Zwit, 467 Mich 56, 66-67; 648 NW2d 602 (2002); People v Sobczak-Obetts, 463
Mich 687, 694-695; 625 NW2d 764 (2001); Herald Co v Bay City, 463 Mich 111,
117; 614 NW2d 873 (2000).

18

inoperable firearms. Far from making this portion of the statute redundant, my

interpretation gives it meaning.

The majority also contends that the Hill definition of “firearm” would not

include an unloaded gun. This is simply not the case. Hill stated: “[T]emporarily

inoperable firearms which can be made operable within a reasonable time fall

within the purview of the statutes that govern the use and possession of firearms.”

Hill, 433 Mich 477. An unloaded firearm can be made operable within a

reasonable time simply by loading it with bullets. Accordingly, an unloaded

firearm falls under both the definition of “firearm” created by the majority in this

case and the definition created by the Legislature and recognized in Hill.

Inexplicably, also, the majority contends that the use of the phrase

“designed and manufactured” in the second sentence of MCL 750.222(d)11

supports its claims that “may” means “designed” in the first sentence. The fact

that the Legislature used “designed” in the very next sentence after it decided to

use “may” demonstrates that this choice was no accident. It again demonstrates

that, when it enacted MCL 750.222(d), the Legislature knew how to create a

“design” requirement. It did not do so in the first sentence. The majority asks the

11
The second sentence reads: “Firearm does not include a smooth bore
rifle or handgun designed and manufactured exclusively for propelling by a
spring, or by gas or air, BB’s not exceeding .177 caliber.” MCL 750.222(d)
(emphasis added).

19

reader to ignore the difference in these sentences. To read “designed” into the first

sentence defies legal precedent, logic, and common sense.

I agree with the majority that MCL 750.222(d) is intended to describe what

weapons constitute firearms. The statute distinguishes firearms from other

weapons by focusing on their capacity to propel a dangerous projectile. Therefore,

the operability of the firearm is what distinguishes it from other weapons. Hill

recognized this distinction. Without the possibility of propelling a projectile, a

gun does not significantly differ as a weapon from a club. The majority’s

interpretation eliminates the distinction the Legislature sought to create.12

The majority attempts to bolster its additions to the language of MCL

750.222(d) by referencing MCL 752.841. MCL 752.841 contains the definition of

a “firearm” for the death or injuries from firearms act, MCL 752.841 to MCL

752.845. MCL 752.841 provides: “For the purposes of this act the word ‘firearm’

shall mean any weapon or device from which is propelled any missile, projectile,

bullet, shot, pellet or other mass by means of explosives, compressed air or gas or

12
The majority contends that the most reasonable assumption is that the
“may” clause is intended to differentiate only between types of weapons. It
believes that one should not assume that it is intended to differentiate between
types of weapons and also to differentiate between inoperable and operable
weapons. It offers no legal support or other explanation for its preference. My
conclusion is that the majority’s reading makes little sense given the context of the
clause. It is with respect to the operability of a weapon that the Legislature
differentiates among weapons. A firearm is a firearm and not a club only when it
has the ability to propel a projectile. In reality, the majority is indicating that it is
uncomfortable with the means the Legislature chose to distinguish between types
of weapons.

20

by means of springs, levers or other mechanical device.” (Emphasis added.) The

majority contends that the Legislature uses the phrase “is propelled” when it wants

to include an operability requirement.

This contention is strained. MCL 752.841 uses the “is propelled” language

because a gun must actually be fired to fall within the act’s definition of “firearm.”

This is in contrast to the statutes prohibiting felony-firearm, felon in possession,

carrying a concealed weapon, and possession of a short-barreled shotgun, which

do not require that the weapon actually be operated. Under these crimes, a

defendant is equally guilty regardless of whether the firearm is discharged. These

are possession crimes. Hence, the Legislature used “may be propelled” in MCL

750.222(d). Had it wanted these crimes to punish the use of a weapon, it would

have used the language “is propelled” that it used in MCL 752.841.

Far from supporting the majority’s interpretation, the difference between

MCL 752.841 and MCL 750.222(d) demonstrates that Hill came to the correct

conclusion regarding the meaning of “may be propelled.” This difference shows

how far the majority is reaching to invent the “design” requirement that it relies

on. Simply put, the majority has departed from its claimed textualist “philosophy”

and added to the language of the statute something that is not there.

THE RULE OF LENITY

The majority claims that its interpretation is the correct reading of MCL

750.222(d). This is despite the fact that Hill reached a different conclusion when

confronted with the same “may be propelled” language. And it is despite the fact

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that the majority recognizes a long split of authority on this subject in the Court of

Appeals. The majority admits that several Court of Appeals cases have found an

inoperability defense to carrying a concealed weapon. In addition, it concedes that

there is more than one plausible meaning to the statute. In ignoring the legal

authority to the contrary, the language of the statute, and the other plausible

meanings of the language, the majority violates the rule of lenity.

Courts have long held that any ambiguity regarding the scope of criminal

statutes must be resolved in favor of lenity. Huddleston v United States, 415 US

814, 830-831, 94 S Ct 1262; 39 L Ed 2d 782 (1974), quoting Rewis v United

States, 401 US 808, 812; 91 S Ct 1056; 28 L Ed 2d 493 (1971). That is, if a

criminal statute is open to more than one legitimate interpretation, it should be

construed strictly. This means that the statute should be construed in favor of the

defendant. United States v Wiltberger, 18 US (5 Wheat) 76, 95; 5 L Ed 37 (1820).

The rule of lenity is important in criminal cases because it provides constitutional

fair warning. It does this by making clear what the law intends to do if someone

crosses a certain line and where that line is drawn. United States v Lanier, 520 US

259, 265; 117 S Ct 1219; 137 L Ed 2d 432 (1997).

I do not believe that the majority has put forth a legitimate interpretation of

MCL 750.222(d). But even if it had, I would reach the conclusion that

22

inoperability is a defense to felon in possession and felony-firearm.13 This is

because then the rule of lenity would require us to construe MCL 750.222(d) in

favor of defendant. The rule favors the result reached in Hill. Therefore, if one

could read MCL 750.222(d) to offer an inoperability defense or not to offer it, the

constitution requires that the Court chose the former. Wiltberger, 18 US (5

Wheat) 95. The majority ignores the rule of lenity and does not interpret the

statute consistently with its actual language. This is constitutionally

impermissible.

The majority concedes in its opinion that it finds two possible ways to read

the statute.14 It states: “[B]oth of these meanings are plausible given the use of

“may” in the statute.” Ante at 6. Because the majority recognizes that it is

choosing between two reasonable interpretations of the statute, it must realize that

13
The majority accuses me of resorting to the rule of lenity without finding
an ambiguity. It misses my point. My discussion of the rule of lenity is premised
on an alternative argument. If the majority had put forth a legitimate interpretation
of MCL 750.222(d), the statute would be ambiguous. This is because the
language would be susceptible to more than one interpretation and reasonable
minds could differ with respect to its meaning. In re MCI Telecom Complaint,
460 Mich 396, 411; 596 NW 2d 164 (1999). In such a situation, the rule of lenity
would apply. And it would require the statute to be interpreted favoring
defendant. Wiltberger, 18 US (5 Wheat) 95. Of the two interpretations presented,
the one put forth in Hill favors defendant. Therefore, the rule of lenity requires
that we apply the Hill interpretation. Significantly, that interpretation is the one
that actually matches the language chosen by the Legislature.
14
I reiterate that I do not believe that there are two legitimate
interpretations of MCL 750.222(d). This is because the majority’s proposed
interpretation creating a “design” requirement is not supported by the language of
the statute.

23

the Constitution requires it to follow the rule of lenity. Wiltberger, 18 US (5

Wheat) 95. But it does not do so. Rather than choose the interpretation that favors

defendant, it chose the one that disfavors him. This not only further demonstrates

that the majority’s interpretation is legally incorrect, it renders the opinion

constitutionally suspect. The majority ignores both the words of the statute and

the constitutional requirements placed on it in interpreting those words.

The majority states that it “believe[s] that the words of the statute as a

whole indicate an intent to include a broad definition . . . .” Ante at 6 n 2. But this

is a policy choice. The statement that a broader rather than a narrower

interpretation of the statute was intended violates the rule of lenity, as articulated

by the United States Supreme Court.

[W]hen choice has to be made between two readings of what
conduct Congress has made a crime, it is appropriate, before we
choose the harsher alternative, to require that Congress should have
spoken in language that is clear and definite. We should not derive
criminal outlawry from some ambiguous implication. [United States
v Universal CIT Credit Corp, 344 US 218, 221-222; 73 S Ct 227; 97
L Ed 260 (1952).]

In this case, there is not even an “ambiguous implication” on which the majority

can rest its decision. As such, the choice it makes between the two plausible

meanings it recognizes does not survive the constitutional protections afforded by

the rule of lenity.

The rules of lenity and fair warning are especially important in this case in

light of Hill. Hill offered the only interpretation from this Court of the language

“may be propelled.” It should have influenced defendant’s understanding of what

24

constitutes a firearm. Arguably, Hill set the line that divides innocent behavior

from criminal behavior. In this case, defendant could not have known that holding

a piece of scrap metal would subject him to prosecution for felon in possession

and felony-firearm. For that reason, defendant’s constitutional right to fair

warning was violated. Lanier, 520 US 265.15

Because the rules of lenity and fair warning favor an inoperability defense,

such a defense is constitutionally required. Accordingly, this case should be

remanded for a new trial. At trial, the court should allow defendant to argue to the

jury that the weapon was not operable and could not reasonably and readily be

repaired within a reasonable time. Any other outcome raises serious constitutional

concerns.

15
The majority finds it incredible that I refer to Hill in this section of my
argument. It is true that Hill did not purport to interpret the felony-firearm statute.
But it is also true that Hill is precedent from this Court interpreting the exact
language we discussed in this case. On the same date it issued this opinion, the
majority stated that “absolutely identical phrases in our statutes” should have
identical meanings. Paige, 476 Mich ___, slip op at 25. It made this statement
repeatedly and emphatically. For example, it wrote in Paige:

When identical words in the law, lying within a similar
statutory context, mean something altogether different, we do
believe that there is a “practical workability” problem, not in the
sense that a court of law cannot render some decision—no opinion
of this Court is “unworkable” in that sense—but in the sense that the
law is made a mockery, meaning one thing in one paragraph and
something else in the next. [Id., slip op at 14-15.]

It is unclear to me why the majority felt so strongly about this point in Paige but
not in this case.

25

 CONCLUSION

Contrary to the majority’s contention, this Court’s decision in Hill provides

significant guidance on how to properly interpret MCL 750.222(d). Hill dealt with

a nearly identical statute and, in fact, construed the identical phrase “may be

propelled” that this case scrutinizes. The majority’s decision to ignore Hill’s

guiding precedent is seriously erroneous.

Ignoring Hill, the majority creates a new “design” requirement for MCL

750.222(d). It is unsupported by the text of the statute. And it reads into the

statute something that previously was not there and was not intended by the

Legislature.16 The majority’s decision to change the words of the statute violates

both the rule of lenity and the constitutional requirement of fair warning.

16
The members of the majority accuse me of falling into the trap of the
false choice fallacy by concluding that they are paying mere lip service to their
claimed philosophy. “The logical fallacy of false choice is a correlative-based
fallacy in which options are presented as being exclusive when they may not be. It
is often used to obscure the likelihood of one option or to reframe an argument on
the user’s terms.” False Choice, Wikipedia
(accessed July 7, 2006).

It is not I who commits this fallacy here. I do not argue simply that the
majority errs because it disagrees with my interpretation. I argue that the majority
is not true to its “plain language” philosophy; it ignores the words of the statute
and adds a “design” requirement that the Legislature chose not to add. Ironically,
it is the majority that commits the fallacy of the false choice. It argues that one
must agree with its reading of the statute or commit a logical fallacy. Perhaps it
does this only “to reframe an argument on the user’s terms.” Id. This seems the
true “argumentative sleight of hand.” Ante at 20.

26

 Defendant was entitled to an inoperability defense. The trial court’s

instructions denied him that defense, and they failed to properly inform the jury of

the central issue in the case. This amounted to plain error requiring reversal.

Therefore, I would remand the case for a new trial.

Marilyn Kelly

Cavanagh, J. I concur only in the result proposed by Justice Kelly.

Michael F. Cavanagh

27