Making a batch of whiskey at home for your own use is a federal crime, and the Supreme Court will decide whether that 158-year-old ban can stand.
Story Snapshot
- The Supreme Court took up the federal ban on distilling spirits at home, a rule that dates to 1868.
- A federal appeals court struck the ban down, ruling it shrinks the liquor tax instead of helping collect it.
- The law forbids distilling in a home or in any shed, yard or enclosure connected to it.
- The Justice Department appealed, and a decision is not expected until 2027.
What the Ban Means for You at Home
Under federal law, Americans may brew beer and make wine at home for their own use. Spirits got no such exemption. Running a still in your house, garage, backyard or a shed out back is a federal felony that can bring up to five years in prison and a $10,000 fine. According to court filings, a violator can even lose the home. It does not matter whether anyone plans to sell a drop.
Federal tax on spirits is owed the moment the liquor is made. Congress passed the location ban in July 1868 to stop widespread whiskey-tax cheating during Reconstruction, on the theory that a still hidden in a house is hard for tax agents to find. That rule has changed little in more than 150 years.
What the Supreme Court Agreed To Decide
On Monday, October 19, the Supreme Court said it will hear Department of Justice v. McNutt. The question is whether the home ban is “necessary and proper” for collecting federal taxes. The Necessary and Proper Clause is the part of the Constitution that lets Congress pass laws needed to carry out the powers the Constitution lists, such as the power to tax.
The case reached the Court because the Fifth Circuit, the federal appeals court for Texas, Louisiana and Mississippi, struck the ban down in April and the Justice Department appealed. The appeals court found the ban raises no revenue. It simply forbids distilling, and by stopping production it reduces the tax the government collects. A ban that shrinks a tax, the court ruled, is not a proper way to carry out the power to collect it.
The Man at the Center of the Case
Scott McNutt is a member of the Hobby Distillers Association, a nonprofit group of home distillers that sued alongside him. In 2014, the Alcohol and Tobacco Tax and Trade Bureau, the Treasury office that collects liquor taxes, sent him a warning after he bought equipment that could be used to make spirits for his own use. The notice warned of up to $500,000 in fines and five years in prison. The Fifth Circuit’s ruling protects only McNutt and the group’s members. Everyone else is still covered by the ban.
The Sixth Circuit, the appeals court over Ohio, came out the other way in a case brought by John Ream, an Ohio man and former home brewer. That split means the same federal law reads one way in Texas and the opposite way in Ohio. The Justice Department argues home stills are easy to hide from inspectors, and that courts should not second-guess Congress’s judgment that the ban helps collect the tax from licensed distillers.
What This Means for Liberty, Markets, and Common Sense
If the justices side with McNutt, they would hold that Congress cannot make a home still a crime simply by tying the ban to its taxing power, and the rule against home stills would fall for everyone, not only for the group’s members. If the justices side with the government, the ban stays, McNutt and the other members lose their protection, and Congress keeps a broad tool to forbid activity inside the home in the name of tax collection.
Two points should guide readers. First, age alone does not make a law valid; the question is whether it fits the tax power. Second, this case is not about ending taxes on spirits. It is about whether Washington can make a choice inside your own property a crime to make tax inspections easier. The answer will reach well beyond the still in the shed.
Sources:
washingtontimes.com, supremecourt.report, courthousenews.com, thetimes-tribune.com, scotusblog.com, congress.gov, apnews.com