So what if the Fourth Amendment permits drone surveillance? It doesn’t require it.

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An announcement by the Federal Aviation Administration to ease restrictions on using unmanned drone aircraft inside the United States ignited a spirited debate among conservatives over whether to accommodate another extension of government power. 

On Tuesday, the FAA published on its website the latest in a string of changes to the rules governing American airspace.  The modifications are designed to systematically introduce unmanned aircraft systems, or “drones,” into civilian and commercial use over United States territory. 

The FAA’s rule changes are in response to congressional mandates contained in the agency’s 2012 reauthorization act. 

First in line to benefit from the FAA’s changes are local law enforcement groups eager for a new surveillance tool. 

Citing potential uses such as tracking criminals and operating search and rescue missions for a fraction of the cost of manned aircraft, police departments in several states have already applied for the FAA’s streamlined waiver process to use drones on a provisional basis.

Over the last decade, the United States military has used drones extensively to gather intelligence and to attack terrorists in remote areas of Pakistan and Afghanistan.  So far, consensus around the FAA’s thinking indicates that domestic drones would not be approved to fly with weapons. 

That hasn’t quieted critics. 

Appearing as a panelist on Fox News’ Special Report on Tuesday night, conservative commentator Charles Krauthammer compared domestic drone surveillance to an unlawful use of the military inside the United States, as well as an unconstitutional invasion of privacy. 

According to Krauthammer, “Drones are an instrument of war.  The Founders had a great aversion to any instruments of war, the use of the military inside even the United States.” 

Switching gears to privacy concerns, Krauthammer batted away arguments that current widely used technology makes domestic drones inevitable: “Yes, you can say we have satellites, we’ve got Google Street View and London has a camera on every street corner but that’s not an excuse to cave in on everything else and accept a society where you’re always under – being watched by the government.” 

Krauthammer’s recommendation was simple.  "I don't want regulations, I don't want restrictions, I want a ban on this. …It's going to be, I think the bane of our existence. Stop it here, stop it now.” 

Andrew C. McCarthy, a former federal prosecutor of terrorists and an editor at National Review, fired back the next day. 

While not making a direct case for domestic drone use, McCarthy faulted Krauthammer for his “weapon of war” analogy.  Per McCarthy, “There are lots of surveillance techniques that have application in both military and domestic contexts; we don’t shun them in the latter because of the former.” 

Besides, according to McCarthy:

 “…why would you take off the table a potentially effective search method, for all purposes and for all time, just because it’s been used effectively in the military context — particularly when, in counterinsurgency strategy, where we seek not to conquer enemies but protect populations, there is already considerable blurring of the line between military and law-enforcement functions?”

Noting Krauthammer’s prior endorsement of warrantless federal surveillance approved during the Bush administration, McCarthy reasoned that privacy concerns arising from domestic drone usage could be accommodated just like any other search and seizure issue. 

“There is a considerable body of Fourth Amendment jurisprudence that applies to this subject.  Even if the Framers never considered drones, the underlying search principles still inform us…” 

Of course, McCarthy is right that there are plenty of legal arguments to justify domestic use of drones.  Federal prosecutors like him couldn’t do their job of protecting society from the bad guys if the Constitution’s guarantees were interpreted unreasonably. 

Fiscally, domestic drones for law enforcement make sense too.  The stagnant economy is forcing governments at all levels to look for cost savings wherever they can find it.  Since drones are by design unmanned, they can be used longer than a flight crew and don’t need to be grounded in bad weather. 

Throw in the fact that drones don’t need a salary, health care or a pension, coupled with their price tag – $40,000 or below for some of the models approved under the FAA’s new guidelines; cheaper than a new police cruiser – and it’s easy to see why the law enforcement community is eager to increase its reach while cutting costs. 

But Krauthammer’s initial reaction strikes a more fundamental chord. 

So what if the Fourth Amendment permits drone surveillance?  It doesn’t require it. 

Prior to the oral arguments in the ObamaCare cases last month, most people thought the Supreme Court would uphold the individual mandate.  After all, seventy years of case law favors expanding government.  Now, it looks like the Court might actually rule on limited government principles rather than defer to government-expanding precedent. 

Times are changing.  After the extraordinary overreach of the Obama administration with individual health insurance mandates, forced energy scarcity and a “fast and furious” Justice Department program that sold guns to drug cartels, is Krauthammer’s instinct to totally ban domestic drones really that radical? 

If anything, it seems like the only reasonable reaction to a government that is out of control.