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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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PRINTED FROM PRINCETON SCHOLARSHIP ONLINE (www.princeton.universitypressscholarship.com). (c) Copyright Princeton University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in PRSO for personal use.date: 18 October 2019

Showing Necessity: Judicial Doctrines and Application to Cases

Showing Necessity: Judicial Doctrines and Application to Cases

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

Randy E. Barnett

Publisher:
Princeton University Press
DOI:10.23943/princeton/9780691159737.003.0014

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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