North Dakota's Maxims of Jurisprudence

A while back, I blogged about California's and Montana's maxims of jurisprudence. These are collections of statutes, or subsections of statutes, that set forth various maxims, canons of construction, or presumptions to aid in the interpretation and application of the law. Typically, the text accompanying the maxims notes that they are intended to aid in the just application of laws, and do not qualify any existing laws.

As a result of another weekend spent inside, I learned that North Dakota also has a statute setting forth a similar list of maxims. North Dakota Century Code § 31-11-05 sets forth North Dakota's maxims of jurisprudence:

The maxims of jurisprudence set forth in this section are not intended to qualify any of the provisions of the laws of this state, but to aid in their just application: 

1. When the reason of a rule ceases so should the rule itself. 

2. When the reason is the same the rule should be the same. 

3. A person must not change that person's purpose to the injury of another. 

4. Anyone may waive the advantage of a law intended solely for that person's benefit, but a law established for a public reason cannot be contravened by a private agreement. 

5. One must so use one's own rights as not to infringe upon the rights of another. 

6. One who consents to an act is not wronged by it. 

7. Acquiescence in error takes away the right of objecting to it. 

8. A person cannot take advantage of that person's own wrong. 

9. A person who fraudulently has dispossessed himself or herself of a thing may be treated as if the person still had possession. 

10. A person who can and does not forbid that which is done on that person's behalf is deemed to have bidden it. 

11. No one should suffer by the act of another. 

12. One who takes the benefit must bear the burden. 

13. One who grants a thing is presumed to grant also whatever is essential to its use. 

14. For every wrong there is a remedy. 

15. Between those who are equally in the right or equally in the wrong the law does not interpose. 

16. Between rights otherwise equal the earliest is preferred. 

17. No person is responsible for that which no person can control. 

18. The law helps the vigilant before those who sleep on their rights. 

19. The law respects form less than substance. 

20. That which ought to have been done is to be regarded as done in favor of one to whom and against one from whom performance is due. 

21. That which does not appear to exist is to be regarded as if it did not exist. 

22. The law never requires impossibilities. 

23. The law neither does nor requires idle acts. 

24. The law disregards trifles. 

25. Particular expressions qualify those which are general. 

26. Contemporaneous exposition is in general the best. 

27. The greater contains the less. 

28. Superfluity does not vitiate. 

29. That is certain which can be made certain. 

30. Time does not confirm a void act. 

31. The incident follows the principal, not the principal the incident. 

32. An interpretation which gives effect is preferred to one which makes void. 

33. Interpretation must be reasonable. 

34. When one of two innocent persons must suffer by the act of a third, the one by whose negligence it happened must be the sufferer.

North Dakota also has two other statutes (both accessible at the link above) which set forth conclusive and disputable presumptions. Section 31-11-03 is the list of forty disputable presumptions which contains several familiar concepts such as: "That a person is innocent of a crime or wrong" (subsection (1)); "That higher evidence would be adverse if inferior is produced" (subsection (6)); and "That a printed and published book purporting to contain reports of cases adjudged in the tribunals of the tate or county where the book is published contains correct reports of such cases. (subsection (34)).  The list also contains some presumptions that the familiar reader will recognize from other states' lists of maxims of jurisprudence, such as: "That Private transactions have been fair and regular" (subsection (19)); "That things have happened according to the ordinary course of nature and the ordinary habits of life" (subsection (28)); That a thing once found to exist continues as long as is usual with things of that nature" (subsection (31)); and "That the law has been obeyed." (subsection 32)).

These maxims are virtually identical to most of California's maxims of jurisprudence, and are even listed in the same order.  There are some minor changes in the wording, primarily changes that make North Dakota's list gender neutral.  North Dakota's list overlaps with California Civil Code sections 3509 through 3543.  Missing from North Dakota's list are the following California sections:

3545. Private transactions are fair and regular.

3546. Things happen according to the ordinary course of nature and the ordinary habits of life.

3547. A thing continues to exist as long as is usual with things of that nature.

3548. The law has been obeyed.

As noted above, all of these missing maxims are included in North Dakota's list of forty disputable presumptions.

The statutes appear to be cited with relative frequency--often in cases involving equitable claims or defenses, such as equitable estoppel or the defense of unclean hands.  While a body of case law exists in support of these defenses, the statutes appear to provide a quick, go-to resource for a simple statement of the rule being applied. But as noted in the statute itself, the maxims have little independent force beyond that which is already set forth in statute or precedent.

Supreme Court Rules That Challenge to New York City Gun Restriction is Moot

Amy Howe at SCOTUSblog writes:

The Supreme Court sent a major Second Amendment case back to the lower courts today, ruling that the challenge to a New York City restriction on the transport of guns is “moot” – that is, no longer a live controversy – because the city changed the rule last year. But some of the court’s more conservative justices signaled that it might not be long before the court takes up another gun rights case.

The case is New York State Rifle & Pistol Assn., Inc. v. City of New York.  I wrote about this case back in January 2019 when the Court granted cert, noting that this was the first major Second Amendment case that the Court had agreed to hear in over a decade. Details on the ordinance at issue and the petitioners' challenge can be found there.

As I noted then, the Court was likely to overturn New York City's restriction in light of Kavanaugh's appointment. But after the Court agreed to review the law, New York City amended its rule so that people could transport firearms to second homes or to shooting ranges outside of the city. In its opinion today, the Court notes that this was the relief that the petitioners had sought.

While the Court's mootness determination avoids engagement with the substance of the Second Amendment challenge, several Justices either disagreed with the decision, or explicitly stated that the Court should take up a Second Amendment case.

Justices Alito, joined by Gorsuch and (for the most part) by Thomas, dissented. The dissent concluded that the case was not moot, and determined that New York City's ordinance violated the Second Amendment.  To quickly summarize the Second Amendment analysis: the dissent found that the New York City ordinance infringed on the right to keep a handgun in the home for self-defense because it restricted people from taking guns out of the home for certain purposes necessary to exercise that right, such as repairing the gun or taking the gun to a range for practice. The dissent found that the ordinance's restriction on taking firearms outside of the city to practice at ranges was impermissible, since gun ranges may not have the same models of firearms available, and because the City could not identify restrictions on taking firearms outside of municipal limits during the founding era. The dissent also took issue with the City's claims that the restriction served a purpose of promoting public safety.

This case originally looked like it would be the next major Supreme Court case to interpret the Second Amendment. With its mootness determination, the Court sidestepped this outcome. But the layout of the opinions gives a preview of the Court's next steps on the Second Amendment. Kavanaugh's concurrence all but confirms that he will join Alito, Gorsuch, and Thomas in voting to grant certiorari to a Second Amendment challenge in the near future, and once that happens this process will begin again.

[Updated 4/28/2020]