Supreme Court Agrees to Decide Whether the 160-Year-Old Federal Ban on Home Distilling Is Constitutional

The Supreme Court on Monday agreed to decide whether Congress can make it a crime to distill liquor at home, taking up the Justice Department's appeal of a ruling that struck down a federal ban dating to the years after the Civil War.

The justices granted the government's petition in Department of Justice v. McNutt, No. 26-204, on their Oct. 19 order list. The case will be argued later in the term.

Federal law bars a distilled spirits plant from being located "in any dwelling house" or "in any shed, yard, or inclosure connected with any dwelling house." Anyone who uses or possesses a still for producing spirits in one of those places faces a fine of up to $10,000, up to five years in prison, or both, according to the government's petition.

The government says the restriction "has now been in effect for 160 years." It traces back to a law Congress passed in July 1868, after House investigators found widespread evasion of the federal liquor tax, according to the petition.

Why the Fifth Circuit Struck Down the Home Distilling Ban

In April, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit agreed with a Texas federal judge that the home distilling ban is unconstitutional. The court said the ban goes beyond Congress's power to tax and is not "necessary and proper" to carrying out that power.

"Primarily, neither provision raises revenue," Judge Edith Hollan Jones wrote for the court. The ban, she wrote, amounts to "an anti-revenue provision that prevents distilled spirits from coming into existence."

The court warned that the government's argument had no limit. "Without any limiting principle, the government's theory would violate this court's obligation to read the Constitution 'carefully to avoid creating a general federal authority akin to the police power,'" Jones wrote.

The appeals court upheld the lower court's order blocking enforcement of the ban against the challengers and found that all of them had standing to sue.

The Government's Case

In its petition, the Justice Department, led by Solicitor General D. John Sauer, argued that the location restrictions are part of a system Congress built to collect the tax on distilled spirits, because homes are difficult to inspect.

The government also pointed to a split among federal appeals courts. The Sixth Circuit has upheld the same ban "on reasoning that is irreconcilable with the Fifth Circuit's," the petition says. The Court "usual[ly]" grants review when a lower court strikes down a federal law, the government added.

The Supreme Court had two pending cases over the ban and chose the government's appeal, the Washington Examiner reported. The Sixth Circuit case, Ream v. U.S. Department of the Treasury, did not appear on Monday's order list.

Who Is Challenging the Law

The challengers are Scott McNutt, the Hobby Distillers Association and three of its members, Rick Morris, Thomas O. Cowdrey III and John Prince III, according to court filings.

Morris, a certified bourbon steward who owns a company that makes stills, founded the association in 2014 to promote non-commercial hobby distilling, according to the challengers' brief. The group had about 1,300 members as of 2024, the brief says. McNutt currently distills fuel alcohol under a permit in a shed 261 feet from his house and wants to "tinker around" with making better-tasting spirits, the Fifth Circuit's opinion says.

The challengers, represented by Andrew Grossman of Baker & Hostetler, agreed that the Supreme Court should take the case. In their brief, they argued that the government's position amounts to "a federal police power in all but name."

They also pointed to home beer brewing, citing an American Homebrewers Association estimate that "at least 1.2 million Americans brew beer at home at least once a year."

Sources: Supreme Court of the United States, Order List, Monday, Oct. 19, 2026: https://www.supremecourt.gov/orders/courtorders/101926zor_q8l1.pdf ; Docket No. 26-204, Department of Justice v. McNutt (petition, question presented, brief for respondents): https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/26-204.html ; U.S. Court of Appeals for the Fifth Circuit, McNutt v. U.S. Department of Justice, No. 24-10760 (Apr. 10, 2026): https://www.ca5.uscourts.gov/opinions/pub/24/24-10760-CV0.pdf ; Washington Examiner (Oct. 19, 2026): https://www.washingtonexaminer.com/news/supreme-court/4770411/supreme-court-challenge-ban-home-distilling-alcohol/