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Restoring the Lost ConstitutionThe Presumption of Liberty$
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Randy E. Barnett

Print publication date: 2013

Print ISBN-13: 9780691159737

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691159737.001.0001

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Showing Necessity: Judicial Doctrines and Application to Cases

Showing Necessity: Judicial Doctrines and Application to Cases

(p.338) Chapter Thirteen Showing Necessity: Judicial Doctrines and Application to Cases
Restoring the Lost Constitution

Randy E. Barnett

Princeton University Press

This chapter examines judicial doctrines to assess necessity. The Presumption of Liberty places the burden of establishing the propriety of laws on the government. Taking the First Amendment as a model, when law is used to accomplish a proper purpose by restricting the liberties of the people, the Presumption of Liberty imposes a burden on those defending the necessity of these restrictions to show two things. First, the government must prove that there is a sufficient “fit” between the liberty-restricting means it chose and the proper purposes it was seeking to attain. Second, the government must demonstrate that there were no less restrictive alternatives to the liberty-restricting means that were chosen. The chapter applies the Presumption of Liberty to particular cases, such as unenumerated rights and the right to keep and bear arms.

Keywords:   judicial doctrines, necessity, Presumption of Liberty, First Amendment, liberty, unenumerated rights, law

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