[El Gato]

Incorporation doctrine selectively applies the Bill of Rights, and other rights protected by the Federal Constitution via the due process claus of the 14th Amendment. In reality, the priveleges and immunities clause was intended to do this directly. Trouble is, the 19th Century Justices didn't approve of the 14th amendment, and basically declared it null and void under the theory that rights are not granted by the Consitution and Bill of Rights, and so they are not "priveleges" of citizens, ignoring the fact that they are actually "immunities" from governmental action.

[supercat]

In reality, the priveleges and immunities clause was intended to do this directly. Trouble is, the 19th Century Justices didn't approve of the 14th amendment, and basically declared it null and void under the theory that rights are not granted by the Consitution and Bill of Rights, and so they are not "priveleges" of citizens, ignoring the fact that they are actually "immunities" from governmental action.

Another difficulty with regard to the First Amendment is that while it would have been reasonable to forbid Congress from passing any laws abridging freedom of speech, etc., it would be unreasonable to suppose that nobody should pass any such laws. The First Amendment, as written, applied only to Congress and could thus use language more absolute than what would have been reasonable against the states.

Unfortunately, Congress hasn't figured out what "no law" means, since it seems they keep trying to create new restrictions. While some of the restrictions in question may be prudentially reasonable, the proper way to enact them would be to pass a Constitutional amendment to give Congress the authority to do so.

The proper way to respond to the fact that people in the 18th Century never imagined the possibility of wireless communications between states would be to pass a Constitutional amendment giving Congress specific authority with regard to such communications, rather than trying to suggest that the Second Amendment doesn't really mean "no law". While some people are wary of amending the Constitution, there really aren't all that many technologies which have emerged which would merit them; I'd rather have a half-dozen more amendments to the Constitution and have courts interpret it by what it actually says, than leave the text of the Constitution as it is while courts try to figure how they think it should have been written to deal with today's world.

For example, there should be a Constitutional amendment authorizing the funding and command structure of an air force. While politicians often ignore the important distinctions the Constitution makes between the army and the navy, the air force really doesn't fit either category and thus should be authorized separately.

In the Constitution, Congress is given essentially unrestricted authority to fund the navy, but funding for the army is much more tightly restricted. There are at least two reasons I can see for this distinction:

• In the Eighteenth Century, it would take far longer to build a navy (months or years) than an army (days or even hours). If the U.S. did not maintain a ready navy when a foreign navy attacked it would be a long time before the U.S. could respond. By contrast, armies could be formed on short notice; while a hastily-banded militia would not be as effective as a well-trained and experienced army, they could be substantially better than nothing while the 'real forces' were being prepared.
• The reach of a navy's ships would be limitted to areas within a short distance of shore. By contrast, armies could be used to oppress populations anywhere.

The air force clearly possesses the first abov-listed characteristic of a navy, but has a much broader reach than the founders would have expected when they gave the navy such broad powers.

Too bad people would rather imagine the Constitution as a "living document" than actually read what it says. Those who regard it as a "living document" would probably regard a moth-infested wool overcoat as a "living garmet".