A Circuit Split Gives SCOTUS an Opportunity To Overturn a Federal Law That Makes Home Distilling a Felony |
Alcohol
A Circuit Split Gives SCOTUS an Opportunity To Overturn a Federal Law That Makes Home Distilling a Felony
The 6th Circuit upheld that 158-year-old law, while the 5th Circuit concluded it could not be justified as a revenue measure.
Jacob Sullum | 5.13.2026 2:00 PM
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If you search for "home still" on Amazon, you will see a wide variety of contraptions designed to separate and concentrate a liquid mixture's most volatile components. Many of them are explicitly advertised as appliances designed to produce alcoholic beverages such as whiskey, brandy, gin, and vodka. But if you bought one of those products with the intent to use it for that purpose, you would be committing a federal felony.
The federal ban on home production of distilled spirits has been on the books since 1868, when Congress enacted it as part of a broader statute aimed at collecting taxes on booze. But two recent federal appeals court decisions raise the possibility that DIY distillers one day will no longer have to worry about this antiquated, widely flouted, and haphazardly enforced prohibition.
Last month in McNutt v. U.S. Department of Justice, the U.S. Court of Appeals for the 5th Circuit ruled that the ban on home distilling cannot be justified as a revenue measure. Eleven days later in Ream v. U.S. Department of Treasury, the U.S. Court of Appeals for the 6th Circuit disagreed, saying the federal government's tax power, combined with the authority that the Constitution gives Congress to "make all laws" that are "necessary and proper" for executing its enumerated powers, amply justified the ban. Those back-to-back decisions created a circuit split that the Supreme Court may be inclined to resolve, especially since it raises questions about the extent of federal power with potentially far-reaching implications.
Under 26 USC 5178(a)(1)(B), "no distilled spirits plant for the production of distilled spirits shall be located in any dwelling house, in any shed, yard, or inclosure connected with any dwelling house, or on board any vessel or boat." The penalty for violating that prohibition is spelled out in 26 USC 5601(a)(6): a fine up to $10,000, up to five years in prison, or both.
The 5th Circuit upheld a permanent injunction that U.S. District Judge Mark T. Pittman issued in 2024. That order barred the federal government from enforcing the home distilling ban against the lead plaintiff, Scott McNutt, and other members of the Hobby Distillers Association (HDA). In addition to concluding that the ban was not a valid exercise of the congressional taxing power, Pittman rejected the argument that it could be justified under the power to regulate interstate commerce.
The 5th Circuit did not consider the Commerce Clause rationale because the government abandoned it on appeal. But the appeals court agreed with Pittman that the home distilling ban did not qualify as a tax measure.
On their face, Judge Edith Jones noted in an opinion joined by the two other judges on the panel, the provisions that McNutt challenged have nothing to do with collecting taxes. "Neither provision........