The Supreme Court Takes Up the Federal Ban on Home Distilling

An American can make beer or wine at home for personal use without penalty, according to NBC News. Distilling spirits at home is another matter. Federal law has barred it since 1868, and on Monday the Supreme Court agreed to take up whether Congress had the constitutional power to enact that ban.

The case, which CBS News identified as Department of Justice v. McNutt, follows a split between two federal appeals courts this spring. The 5th Circuit ruled against the ban, and the 6th Circuit upheld it. Reports differ on exactly which case or cases the Court took, and the Court's own order list was not available for this story.

The question reaches past hobbyists. It asks how far Congress's power to tax extends into conduct inside a private home.

What the Statute Says

The statute bars producing distilled spirits at home for personal use, and it covers any "dwelling house," shed, yard or enclosure, CBS reported. Penalties are fines and up to five years in prison, and the home and the property inside it can also be forfeited. NBC News and the ABA Journal put the fine at up to $10,000.

According to CBS, Congress acted after a House report from 1867 found that at least seven-eighths of spirits went untaxed. The tax was $2 a gallon, above the market price, and distillers bribed revenue officers. Those details come only from CBS and were not confirmed in other reporting.

Two Appeals Courts, Two Answers

The challengers are the Hobby Distillers Association and a member who wants to distill at home, CBS reported. Reports differ on how many members are plaintiffs. CBS describes one, NBC says "several," and The Daily Record put it at four of the group's 1,300 members.

CBS reported that a federal district court found the ban unconstitutional and that the 5th Circuit upheld most of that ruling. The appeals court reasoned that the ban is not "plainly adapted" to the taxing power, because it reduces tax revenue. Upholding it, the court said, would let Congress "criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity." The ABA Journal, in an excerpt relaying an Associated Press report, gave the date of that ruling as April 10 and said the 6th Circuit upheld the ban 11 days later. We could not confirm those dates in the full text.

The 6th Circuit case is that of John Ream, a Newark, Ohio brewer who has fought the ban for years, according to a USA Today network report carried by Yahoo. The Buckeye Institute represents him. Its president and CEO, Robert Alt, said in a statement that his clients "will have their day in court."

Whether the justices granted, held or denied Ream's petition is unconfirmed. Yahoo reported that both sides asked the Court to review the case, while CBS described only the government's petition.

The Constitutional Fight

Solicitor General D. John Sauer called the lower-court ruling "erroneous," CBS reported. The notes we worked from say the government argues that concealment and inspection concerns justify limits on where distilling can happen, but they do not attribute that position to a named filing.

The challengers invoke the Taxation and Necessary and Proper Clauses. In their court papers, quoted by CBS, they wrote that "there is no limit to the government's claim of power to criminalize local conduct that might conceal taxable activity."

Fifteen Republican-led states, including Ohio, Florida and Idaho, filed a brief backing the challengers, according to The Daily Record. That brief and the attorneys general's line that, "Unlike a good whiskey," the split "will not age well," rest on that single report, which we could read only in snippet form.

What Comes Next

Briefing comes first. CBS expects arguments next year and a decision by late June or early July. The USA Today network report pointed to review in early 2027 and a ruling that summer. The Supreme Court's order list and docket should settle exactly which petitions were granted.