Supreme Court Will Review Federal Ban On Home Distilling Spirits

The Supreme Court announced on Monday (October 19) that it will consider whether the federal ban on home distilling of spirits is constitutional, a move that could change the rules for hobbyists who want to make whiskey, gin, or other liquor at home. The case, known as Department of Justice v. McNutt, challenges a law enacted in 1868 that currently prohibits producing distilled spirits at home for personal use, with violators facing criminal penalties including up to five years in prison, a $10,000 fine, and possible forfeiture of their property.

Unlike home brewing of beer or winemaking, which are permitted for personal use, distilling spirits at home has remained illegal under federal law for over 150 years. The challengers, including the Hobby Distillers Association and several of its members such as Scott McNutt and Rick Morris, filed suit after the Alcohol and Tobacco Tax and Trade Bureau denied them licenses for home distilling. McNutt used his still to make fuel alcohol and Morris owns a company that manufactures home stills.

The legal debate centers on whether Congress exceeded its powers by banning home distilling rather than simply taxing it. A federal district court agreed with the challengers, ruling the ban unconstitutional because it criminalizes conduct not subject to the tax. The Fifth Circuit Court of Appeals upheld most of that decision, warning that allowing the ban could let Congress criminalize nearly any at-home conduct that might conceal taxable activity. However, a similar case brought by John Ream in Ohio had an opposite result, with the Sixth Circuit Court of Appeals siding with the government and upholding the ban. This split led all parties to ask the Supreme Court to resolve the issue nationwide.

Solicitor General D. John Sauer, representing the federal government, defended the law, arguing that Congress can restrict taxable activities by location, especially if there is a risk taxes will go unpaid. He pointed to the history of rampant tax evasion by commercial distillers in the 1800s as a reason for the original ban. Lawmakers acted after learning most spirits went untaxed and concluded that a strict location ban was needed to enforce tax collection.

If the challengers succeed, home distillers would still need to register their equipment and pay excise taxes, even for personal consumption. Some states, such as West Virginia, have legalized home distilling, but these state laws do not override the federal ban.

The Supreme Court will likely hear arguments in this case next year, with a decision expected by late June or early July. Until a ruling is made, the federal ban on home distilling remains in effect.