Full Breakdown
Supreme Court to Review 150-Year-Old Ban on Home Distilling
By Drooid · · How we work
The Case at Hand
On October 19, 2026, the Supreme Court announced it will hear arguments on whether the 1868 federal prohibition on distilling spirits in private residences exceeds Congress’s constitutional taxing authority. The case, *Department of Justice v. McNutt*, stems from challenges by the Hobby Distillers Association and individual plaintiffs who seek to produce small quantities of whiskey, gin, or other spirits at home for personal use. If the ban is struck down, challengers would still be required to register their stills and pay excise tax on the distilled product.
Historical Background
Congress enacted the ban in 1868 as part of Reconstruction-era tax reforms aimed at curbing evasion by commercial distillers. A 1867 House report noted that “at least seven-eighths” of spirits were untaxed, prompting a $2-per-gallon excise rate and location restrictions that criminalized any still located in a dwelling, shed, yard, or enclosure. The law has remained unchanged and applies nationwide, despite states such as West Virginia legalizing home distilling in 2024.
Timeline of Litigation
- 1868 – Federal statute prohibits home distilling.
- 2013 – Rick Morris founds the Hobby Distillers Association.
- April 2026 – Fifth Circuit (Texas) rules the ban unconstitutional; Sixth Circuit (Ohio) upholds it.
- October 19, 2026 – Supreme Court grants certiorari.
- 2027 (expected) – Oral arguments; decision projected for late June or early July 2027.
Key Data Points
- Criminal penalties: up to five years imprisonment and a $10,000 fine per batch.
- Historical tax evasion: ? 87 % of spirits untaxed in 1867.
- Modern revenue: federal excise tax on distilled spirits generates billions of dollars annually.
Official Positions
- Solicitor General D. John Sauer argues the ban is a permissible location-based restriction to prevent concealment of taxable activity and to facilitate inspections.
- Challengers contend the statute exceeds Congress’s taxing power because it criminalizes conduct that does not itself produce revenue and is therefore not “plainly adapted” to tax collection.
Conflicting Appellate Rulings
These opposite conclusions create a circuit split that the Supreme Court must resolve.
Why the Decision Matters
A ruling that invalidates the ban could open the door for nationwide home-distilling, subject to registration and excise tax, while preserving state authority to regulate the activity. Upholding the ban would reaffirm broad congressional authority to regulate location-based conduct tied to tax collection, potentially extending that authority to other home-based enterprises.
What’s Next
The parties will present oral arguments in 2027, and the Court is expected to issue its opinion by the end of June 2027. The outcome will determine whether hobbyists can legally operate stills at home and will clarify the limits of Congress’s taxing power over private conduct.