Supreme Court May Overturn 156-Year-Old Ban on Home Distilling After Circuit Split

The internet is filled with devices marketed as home stills, explicitly designed to produce alcoholic beverages like whiskey, brandy, gin, and vodka. Yet purchasing one with the intent to use it for distillation is a federal felony under current U.S. law.

This prohibition traces back to 1868, when Congress enacted it as part of broader legislation aimed at taxing distilled spirits. However, two recent federal appeals court decisions have cast doubt on the law’s constitutionality, creating a legal divide that may soon reach the Supreme Court.

Conflicting Appeals Court Rulings Spark Circuit Split

In McNutt v. U.S. Department of Justice, the U.S. Court of Appeals for the 5th Circuit ruled last month that the federal ban on home distilling cannot be justified as a revenue measure. Just 11 days later, the U.S. Court of Appeals for the 6th Circuit issued a contradictory decision in Ream v. U.S. Department of Treasury, upholding the ban on the grounds that Congress’s taxing power and its constitutional authority to make "necessary and proper" laws justify the restriction.

This circuit split—where two federal appeals courts reach opposite conclusions on the same legal question—has historically been a key factor in the Supreme Court’s decision to grant review. The high court may now step in to resolve the dispute, particularly given the broader implications for federal power.

Legal Challenges and the Hobby Distillers Association

The 5th Circuit’s decision came in response to a lawsuit filed by Scott McNutt, a member of the Hobby Distillers Association (HDA), and others challenging the federal ban. U.S. District Judge Mark T. Pittman issued a permanent injunction in 2024, barring the government from enforcing the law against McNutt and other HDA members.

The 5th Circuit affirmed Pittman’s ruling, concluding that the ban was not a valid exercise of Congress’s taxing power. Judge Edith Jones, writing for the panel, noted that the challenged provisions do not raise revenue but instead actively prevent the production of distilled spirits, thereby reducing potential tax collections.

"Neither provision raises revenue," Jones wrote. "Not only do they prohibit at-home distilleries, but in so doing, they amount to an anti-revenue provision that prevents distilled spirits from coming into existence. The provisions operate to reduce revenue instead of raising it."

Federal Penalties for Home Distilling

Under 26 USC 5178(a)(1)(B), it is illegal to operate a distilled spirits plant in a dwelling house, shed, yard, or on a vessel. Violators face penalties under 26 USC 5601(a)(6), which include fines of up to $10,000, imprisonment for up to five years, or both.

The 6th Circuit’s decision in Ream relied on Congress’s broad authority under the Constitution’s Necessary and Proper Clause, as well as its power to tax and regulate interstate commerce. The government argued that the ban is a valid exercise of these powers, despite the 5th Circuit’s rejection of the taxing power rationale.

What’s Next for Home Distillers?

The Supreme Court has not yet decided whether to take up the case, but the circuit split increases the likelihood of review. If the Court rules in favor of the 5th Circuit’s reasoning, the federal ban on home distilling could be struck down, allowing hobbyists to legally produce spirits at home for personal use.

Until then, the law remains in effect, and enforcement—though sporadic—continues to pose a risk to those who choose to ignore the prohibition.