[543]*543De MUNIZ, J.
Plaintiffs seek a declaratory judgment regarding the validity and constitutionality of provisions of Multnomah County Ordinance 646 and of City of Portland Ordinance 163299. The trial court issued a 25 page opinion in ruling for defendants. Plaintiffs appeal. We affirm in part and reverse in part.
In 1990, Multnomah County and City of Portland adopted ordinances concerning firearms. City of Portland Ordinance 163299 provides for collection of a $15 fee from firearms dealers to cover the cost of criminal record checks of prospective handgun purchasers mandated by ORS 166.420. Multnomah County Ordinance 646 requires a $15 fee for background checks of a firearms purchaser. It also classifies certain firearms as “assault weapons,” prohibits their possession for sale at the Exposition Center and provides that no person shall possess an “assault weapon in a public place,” unless it is being transported in a specified manner. The trial court held that the ordinances are not preempted by state law and that the firearms listed in the Multnomah County ordinance are not arms protected by Article I, section 27.1
First, we address the issue of jurisdiction. A court may consider its jurisdiction to enter a declaratory judgment, even though the issue was not raised by either party. Gaffey v. Babb, 50 Or App 617, 620, 624 P2d 616, rev den 291 Or 117 (1981). A proceeding under chapter 29 must be more than a request for an advisory opinion; as an exercise of the “judicial power” under Article VII (amended), section 1, it requires a justiciable controversy between the parties. LaGrande/Astoria v. PERB, 281 Or 137, 139 n 1, 576 P2d 1204 (1978). A justiciable controversy exists when there is an actual and substantial controversy between parties with adverse legal interests, and the controversy must involve present facts rather than future events or a hypothetical issue. Cummings Constr. v. School Dist. No. 9, 242 Or 106, 110, 408 P2d 80 [544]*544(1965). We conclude that the interests of plaintiffs and defendants are sufficiently adverse and that there is an actual and substantial controversy.
Sections IV A(l)-(3) of the county ordinance regulate the possession of certain assault weapons in public places. Plaintiffs assign error to the trial court’s ruling that the semiautomatic rifles, semi-automatic pistols and specified shotguns listed in the county ordinance are not protected by Article I, section 27.2 The trial court concluded that, because Oregon pioneers were aware of repeating rifles, the listed weapons are “arms” within the meaning of Article I, section 27, but that they are not entitled to constitutional protection, because they “originated as or evolved from military ordnance.” See State v. Kessler, 289 Or 359, 369, 614 P2d 94 (1980). Plaintiffs argue that that analysis is erroneous, because the weapons are modern day equivalents of the type of weapons used by colonial militiamen and are personal, not military, weapons.
As formulated by the Supreme Court, the inquiry for whether a weapon is within the meaning of “arms” in Article I, section 27, is whether the weapon,
“as modified by its modern design and function, is of the sort commonly used by individuals for personal defense during either the revolutionary or post- revolutionary era or in 1859 when Oregon’s constitution was adopted.” State v. Delgado, 298 Or 395, 400, 692 P2d 610 (1984) (footnote omitted); see also State v. Kessler, supra.
Under that test, a weapon must satisfy three criteria: (1) although the weapon may subsequently have been modified, it must be “of the sort” in existence in the mid-nineteenth century; (2) the weapon must have been in common use; and (3) it must have been used for personal defense. The weapons at issue here fail these tests.
The parties presented a battle of the experts to prove that the weapons were or were not of the “sort” used in mid-nineteenth century.3 The Supreme Court has not articulated [545]*545what theory underlies how that final determination is to be made. In one instance, the court has described the analysis as a search for a “pre-twentieth century form or counterpart.” State v. Delgado, supra, 298 Or at 404 n 8. However, “form” and “counterpart” do not mean the same thing. “Form” is a nebulous concept. The definitions in Webster’s Third New International Dictionary 892 (unabridged 1971) include: “image, representation”; “the shape and structure of something as distinguished from the material of which it is composed”; and “the ideal or intrinsic character of anything or something that imposes this character.” The trial court appeared to accept “form” as the rationale on which it based its conclusion that, despite the fact that the technology for automatic weapons did not exist until the twentieth century, the listed weapons are equivalent to those known by the pioneers. The dissent concurs with that basis.4
However, the Supreme Court also referred to the analysis as a search for a “counterpart.” That is a more concrete term than “form.” Webster’s Third New International Dictionary, supra at 520, includes in the definition of counterpart “a thing that may be applied to another thing so as to fit perfectly,” and “aperson or thing so like another as to seem a duplicate.” Under those definitions, the technology by which automatic weapons operate precludes a finding that a semi-automatic weapon is a “counterpart” of a mid-nineteenth century repeating rifle.
The Supreme Court has shown that technological advancement is a factor in considering whether arms come [546]*546within the constitutional protection of section 27. In State v. Delgado, supra, the court was confronted with the technology that had advanced a jackknife to a switch-blade. The court noted that, because there were general technological changes in weaponry as there were in tools during the mid-nineteenth century, “[t]he addition of a spring to open the blade of a jackknife is hardly a more astonishing innovation than [the development of the Gatling gun, breech loading rifles, metallic cartridges and repeating rifles].”5 298 Or at 403.6 However, while technological advancement does not necessarily mean that a weapon is not ‘ ‘arms’ ’ within Article I, section 27, there is a point at which that advancement renders the constitutional protection inapplicable. In State v. Kessler, supra, 289 Or at 369, the court held:
“Firearms and other hand-carried weapons remained the weapons of personal defense, but the arrival of steam power, mechanization, and chemical discoveries completely changed the weapons of military warfare. The development of powerful explosives in the mid-nineteenth century, combined with the development of mass-produced metal parts, made possible the automatic weapons, explosives, and chemicals of modern warfare. P. Cleator, Weapons of War 153-177 (1967).
[547]*547“These advanced weapons of modern warfare have never been intended for personal possession and protection.
Free access — add to your briefcase to read the full text and ask questions with AI
[543]*543De MUNIZ, J.
Plaintiffs seek a declaratory judgment regarding the validity and constitutionality of provisions of Multnomah County Ordinance 646 and of City of Portland Ordinance 163299. The trial court issued a 25 page opinion in ruling for defendants. Plaintiffs appeal. We affirm in part and reverse in part.
In 1990, Multnomah County and City of Portland adopted ordinances concerning firearms. City of Portland Ordinance 163299 provides for collection of a $15 fee from firearms dealers to cover the cost of criminal record checks of prospective handgun purchasers mandated by ORS 166.420. Multnomah County Ordinance 646 requires a $15 fee for background checks of a firearms purchaser. It also classifies certain firearms as “assault weapons,” prohibits their possession for sale at the Exposition Center and provides that no person shall possess an “assault weapon in a public place,” unless it is being transported in a specified manner. The trial court held that the ordinances are not preempted by state law and that the firearms listed in the Multnomah County ordinance are not arms protected by Article I, section 27.1
First, we address the issue of jurisdiction. A court may consider its jurisdiction to enter a declaratory judgment, even though the issue was not raised by either party. Gaffey v. Babb, 50 Or App 617, 620, 624 P2d 616, rev den 291 Or 117 (1981). A proceeding under chapter 29 must be more than a request for an advisory opinion; as an exercise of the “judicial power” under Article VII (amended), section 1, it requires a justiciable controversy between the parties. LaGrande/Astoria v. PERB, 281 Or 137, 139 n 1, 576 P2d 1204 (1978). A justiciable controversy exists when there is an actual and substantial controversy between parties with adverse legal interests, and the controversy must involve present facts rather than future events or a hypothetical issue. Cummings Constr. v. School Dist. No. 9, 242 Or 106, 110, 408 P2d 80 [544]*544(1965). We conclude that the interests of plaintiffs and defendants are sufficiently adverse and that there is an actual and substantial controversy.
Sections IV A(l)-(3) of the county ordinance regulate the possession of certain assault weapons in public places. Plaintiffs assign error to the trial court’s ruling that the semiautomatic rifles, semi-automatic pistols and specified shotguns listed in the county ordinance are not protected by Article I, section 27.2 The trial court concluded that, because Oregon pioneers were aware of repeating rifles, the listed weapons are “arms” within the meaning of Article I, section 27, but that they are not entitled to constitutional protection, because they “originated as or evolved from military ordnance.” See State v. Kessler, 289 Or 359, 369, 614 P2d 94 (1980). Plaintiffs argue that that analysis is erroneous, because the weapons are modern day equivalents of the type of weapons used by colonial militiamen and are personal, not military, weapons.
As formulated by the Supreme Court, the inquiry for whether a weapon is within the meaning of “arms” in Article I, section 27, is whether the weapon,
“as modified by its modern design and function, is of the sort commonly used by individuals for personal defense during either the revolutionary or post- revolutionary era or in 1859 when Oregon’s constitution was adopted.” State v. Delgado, 298 Or 395, 400, 692 P2d 610 (1984) (footnote omitted); see also State v. Kessler, supra.
Under that test, a weapon must satisfy three criteria: (1) although the weapon may subsequently have been modified, it must be “of the sort” in existence in the mid-nineteenth century; (2) the weapon must have been in common use; and (3) it must have been used for personal defense. The weapons at issue here fail these tests.
The parties presented a battle of the experts to prove that the weapons were or were not of the “sort” used in mid-nineteenth century.3 The Supreme Court has not articulated [545]*545what theory underlies how that final determination is to be made. In one instance, the court has described the analysis as a search for a “pre-twentieth century form or counterpart.” State v. Delgado, supra, 298 Or at 404 n 8. However, “form” and “counterpart” do not mean the same thing. “Form” is a nebulous concept. The definitions in Webster’s Third New International Dictionary 892 (unabridged 1971) include: “image, representation”; “the shape and structure of something as distinguished from the material of which it is composed”; and “the ideal or intrinsic character of anything or something that imposes this character.” The trial court appeared to accept “form” as the rationale on which it based its conclusion that, despite the fact that the technology for automatic weapons did not exist until the twentieth century, the listed weapons are equivalent to those known by the pioneers. The dissent concurs with that basis.4
However, the Supreme Court also referred to the analysis as a search for a “counterpart.” That is a more concrete term than “form.” Webster’s Third New International Dictionary, supra at 520, includes in the definition of counterpart “a thing that may be applied to another thing so as to fit perfectly,” and “aperson or thing so like another as to seem a duplicate.” Under those definitions, the technology by which automatic weapons operate precludes a finding that a semi-automatic weapon is a “counterpart” of a mid-nineteenth century repeating rifle.
The Supreme Court has shown that technological advancement is a factor in considering whether arms come [546]*546within the constitutional protection of section 27. In State v. Delgado, supra, the court was confronted with the technology that had advanced a jackknife to a switch-blade. The court noted that, because there were general technological changes in weaponry as there were in tools during the mid-nineteenth century, “[t]he addition of a spring to open the blade of a jackknife is hardly a more astonishing innovation than [the development of the Gatling gun, breech loading rifles, metallic cartridges and repeating rifles].”5 298 Or at 403.6 However, while technological advancement does not necessarily mean that a weapon is not ‘ ‘arms’ ’ within Article I, section 27, there is a point at which that advancement renders the constitutional protection inapplicable. In State v. Kessler, supra, 289 Or at 369, the court held:
“Firearms and other hand-carried weapons remained the weapons of personal defense, but the arrival of steam power, mechanization, and chemical discoveries completely changed the weapons of military warfare. The development of powerful explosives in the mid-nineteenth century, combined with the development of mass-produced metal parts, made possible the automatic weapons, explosives, and chemicals of modern warfare. P. Cleator, Weapons of War 153-177 (1967).
[547]*547“These advanced weapons of modern warfare have never been intended for personal possession and protection. When the constitutional drafters referred to an individual’s ‘right to bear arms,’ the arms used by the militia and for personal protection were basically the same weapons. Modern weapons used exclusively by the military are not ‘arms’ which are commonly possessed by individual for defensef;] therefore, the terms ‘arms’ in the constitution does not include such weapons.”
In the light of the Supreme Court’s analyses, we conclude that the resolution of whether a weapon is of the “sort” known in the mid-nineteenth century involves more than parsing through the evolution of a particular weapon. Article I, section 27, protects the right to bear arms in defense of self and in defense of the state. The Supreme Court has recognized that, when the constitution was drafted, those arms were the same. Technology has now defined a difference between personal weapons for defense of self and weapons of warfare. The court has concluded that the determination of what weapons come within the constitutional provision encompasses consideration of whether the drafters would have intended the constitutional protection to apply if they had envisioned the technological advancements and the reasons for which those advancements were made.
The dissent acknowledges that “[t]he listed firearms may look like military weapons or may have taken their design from military weapons” but finds that irrelevant because “so too did the firearms possessed by militiamen and civilians in the mid-nineteenth century.” 122 Or App at 558. That statement ignores the Supreme Court’s determination that there is a point at which weapons for self-defense and military purposes ceased to be the same and that advanced weapons of military warfare were never intended for personal possession and protection.7
The trial court cited plaintiffs’ exhibit of a study by the United States Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms that included many of the weapons at issue here. That study noted that the only real [548]*548difference between the civilian and military weapons is that the civilian models supposedly are not capable of fully automatic fire.8 The trial court found that “[t]he record in this case establishes that virtually all of the Ordinance 646 weapons originated as or evolved from military ordnance.” Even plaintiffs’ expert conceded that the “original intent of probably two-thirds of the weapons was in military application” and that the weapons are generally copies of military weapons and “are slightly modified and presented in civilian mode.” The trial court concluded that the weapons “can be converted readily back into the fully automatic military configuration.”9
The dissent concludes that, because the “semiautomatic firearms may be illegally modified to become automatic weapons * * * is not a reason to deprive them of section 27 protection under the tests adopted by the Supreme Court.” 122 Or App at 556, n 2. That is backwards. The weapons have been modified, ostensibly so that they will not be classified as military weapons, which, under the Supreme Court’s tests are not entitled to the constitutional protection. Those “modifications” cannot be used to bootstrap these weapons into personal defense weapons so that they come within the constitutional protection. The weapons are not the [549]*549“sort” of weapons for defense of self intended by the drafters to come within Article I, section 27.
The dissent is incorrect that our conclusion that the semi-automatic weapons are not constitutionally protected is based solely on technological developments. Even if the listed weapons could be said to be the “equivalent” of mid-nineteenth century repeating firearms used for self-defense, such firearms were not in common use at that time. To meet that test, plaintiffs relied on the existence in the mid-1850’s of a manually operated repeating rifle known as the Volcanic, some of which may have been in the Oregon Territory. However, the evidence showed that the Volcanic had trouble in detonating and was not commercially successful. That rifle was produced from 1855 to 1857, when the company went into receivership. From 1857 to 1860, the company produced about 3,200 firearms that retained the basic features of the earlier Volcanic rifles. The Henry repeating rifle was not introduced until 1860, after the 1859 approval of the Oregon Constitution. On the record, the trial court concluded that
“there was no such thing as an automatic firearm in the 1850’s either in Oregon or elsewhere. The best the firearms industry could produce at the time were primitive, manually operated repeating weapons. * * * It was not until 1862 that this country ‘saw the first commercially available successful lever action repeating rifle * * *.’ [Defendants’ expert’s affidavit].”
We hold that the weapons listed in Multnomah County Ordinance 646 are not “arms” within the meaning of Article I, section 27.10
Plaintiffs also assign as error the trial court’s ruling that Section IV(4) of the county ordinance, which prohibits any person from possessing an assault weapon in the Exposition Center for purposes of sale, is not preempted by state law. The question is whether the county ordinance is in conflict with state law because the ordinance forbids conduct that [550]*550plaintiffs allege is permitted by state law. See City of Portland v. Jackson, 316 Or 143, 146, 850 P2d 1093 (1993). To answer that question, we must first examine the ordinance and statute claimed to be in conflict and determine what conduct the ordinance prohibits. Then we determine whether the statute permits that conduct, either by an express legislative decision, by a decision apparent in the legislative history or otherwise. If the ordinance prohibits conduct that the statute permits, the laws are in conflict and the ordinance is displaced. 316 Or at 151.
The legislation that plaintiffs claim has preempted the ordinance was enacted in 1989, in House Bill 3470,11 and has been referred to as the “Katz Act.” That legislation was a comprehensive revision of state law concerning the possession and sale of firearms. Section 38, codified as ORS 166.245, provides:
“Except as otherwise provided by law, cities, counties and other political subdivisions of this state may regulate only the possession of firearms and ammunition in a public place, as defined in ORS 161.015.” (Emphasis supplied.)
Section IV A(4) of the county ordinance provides that “[n]o person shall possess for purposes of sale an assault weapon in the Exposition Center.” The county argues that the ordinance is not in conflict with the state law because, pursuant to ORS 161.015(9), the Exposition Center is a “public place” and, under ORS 166.245, the county is permitted to regulate the possession of firearms in a public place.
The legislature has expressly permitted local enactments only as to possession of firearms in public places. See City of Portland v. Jackson, supra, 316 Or at 147 n 2. Contrary to county’s position, the legislative history demonstrates that the legislature did not intend that ORS 166.245 would permit regulation of sales of weapons in public places.
ORS 166.245 was the subject of considerable debate and compromise.12 Its extensive legislative history indicates [551]*551that it was supported by both firearms and gun-control advocates. Firearms advocates sought to limit the ability of local governments to regulate firearms beyond the regulations in HB 3470, while gun-control advocates sought to permit some local regulation consistent with existing ordinances. The history indicates that the legislature viewed ORS 166.245 as a “ceiling” above which local governments could not regulate.13 Above that ceiling was the sale of firearms. During the Senate Judiciary Committee hearings on HB 3470, Senator Shoemaker said:
“Finally, one more point on the Section 38 concerning its effect on swap meets. Again, I would like to repeat, that section 38 permits local jurisdictions to regulate only the possession of firearms in public places. Now what that’s talking about is carrying arms into public places on your body. That’s what its talking about. Selling falls within section 3, which as I said before, occupies the field. Permits anyone to sell arms except to certain people. That would [552]*552apply to a swap meet or other such informal sale arrangement.” Tape recording, Senate Judiciary Committee, June 29, 1989, Tape 244, side A at 225. (Emphasis supplied.)
We hold that Section IV A(4) exceeds the limits of ORS 166.245 and operates in an area that the legislature intended to preempt. Therefore, that portion of the county ordinance is invalid.
Plaintiffs also argue that the court erred in holding that there was no preemption as to the county and city provisions that impose fees. Our inquiry is the same as above. The county ordinance requires a dealer to pay a fee to cover costs of background checks of prospective firearms purchasers. The city’s ordinance requires fees for background checks of prospective handgun purchasers. Plaintiffs argue that the imposition of fees is a regulation of the sale of firearms and is preempted by ORS 166.245.
ORS 166.245 is silent as to imposition of fees. Unlike the question of the sale of firearms, we do not find in the legislative history an intention that the legislature decided to preempt local legislation of fees. The dissent finds significant that ORS 166.420, which provides for registering the sale of handguns, was enacted as part of HB 3470 that included a section to require a study to be done to determine the cost of background checks. The results of the study were to be presented to the 1991 legislature for consideration, at which time statutory amendments would be considered. The dissent concludes that that study shows the legislative decision to maintain control of fees and to consider the question at a later date.
However, seeking information about costs shows only that the legislature wanted reliable figures before deciding whether it should or should not act. It does not show that, while that study was being made, the legislature intended that other governmental bodies could not enact fees. Plaintiffs do not challenge the authority of the city or county to impose compensatory fees. That is what these fees are. The challenged provisions impose fees of $15 for background checks of prospective purchasers of firearms. Neither imposes a sanction for failure to pay the fee nor prevents the sale from being made if the fee is not paid. The provisions do not regulate firearms and are not preempted by state law.
[553]*553Judgment affirmed as to constitutionality of Multnomah County Ordinance 646, Section IV, and validity of City of Portland Ordinance 163299 and Multnomah County Ordinance Section V; reversed as to validity of Multnomah County Ordinance 646, Section IV(A)(4).