The Supreme Court will decide whether the federal government can keep criminalizing Americans who distill spirits in their own homes — a Reconstruction-era ban that carries up to five years in prison and a $10,000 fine for anyone caught running a still in their own house.
For more than 150 years, Washington has claimed the power to tell free citizens what they can and cannot make on their own property. You can brew beer in your basement. You can ferment wine in your garage. But distill whiskey at home and you're a federal criminal. The 1868 law was sold as a way to stop tax fraud by commercial distillers. In practice, it made a crime out of a traditional American activity that the founders would have considered none of the government's business.
Two federal appeals courts split on the question in April, just 11 days apart. The 5th Circuit, ruling in a case brought by the Texas-based Hobby Distillers Association, concluded the ban exceeds Congress's taxing power. The 6th Circuit, in a challenge from Ohio brewpub owner John Ream, upheld it. The Supreme Court agreed to review the 5th Circuit's decision — the outcome the Justice Department pushed for.
The challengers include Scott McNutt, who uses a home still to distill fuel alcohol, and Rick Morris, who manufactures stills for home use. Both were told by the federal Alcohol and Tobacco Tax and Trade Bureau — part of the Treasury Department — that they couldn't even obtain a license to distill at home because of the ban. Their lawsuit argues Congress overstepped its taxing authority by enacting a prohibition that doesn't actually raise revenue; it simply bans the activity.
Solicitor General D. John Sauer, representing the federal government, defends the law, arguing Congress can restrict taxable activities by location when there's a strong chance the taxes won't get paid. Government attorneys warn that striking the ban would erode congressional powers.
NBC News framed the case with bathtub-gin whimsy but buried the most telling contrast: Americans have been making beer and wine at home for personal use without penalty for decades. The New York Post reported the legal split cleanly but omitted that several states — including West Virginia, which legalized home distilling in 2024 — already permit the practice, creating the same federal-state friction that exists with marijuana. Those state laws don't override the federal ban.
If the challengers win, they'd still have to register their stills and pay excise taxes on what they produce. Nobody is arguing for a tax dodge — they're arguing that the taxing power doesn't give Congress a blank check to prohibit an activity in a private home that it simply finds inconvenient to regulate.
The core question: Does the power to tax mean the power to ban? On that answer hangs more than just home whiskey.
