Could you soon make your own moonshine? SCOTUS takes up 160-year-old ban
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Bottles of Scotch whisky at a liquor store in Miami on May 1, 2026. Photo: Joe Raedle/Getty Images
The Supreme Court on Monday agreed to hear a challenge to the Reconstruction-era ban on distilling alcohol in private homes.
Why it matters: Americans can legally brew beer or make wine at home, but making whiskey, vodka or other spirits can land them in federal prison. The Supreme Court could change that.
Driving the booze: SCOTUS will review Department of Justice v. McNutt, an April ruling by the conservative 5th U.S. Circuit Court of Appeals that found the nearly 160-year-old home-distilling ban unconstitutional and an overreach of Congress' taxing power.
- Distilling in your home carries a penalty of up to five years in prison, a $10,000 fine or both.
- The 6th Circuit reached the opposite conclusion in a separate April ruling for Ream v. Department of the Treasury, arguing Congress can restrict distilling at home to protect federal alcohol tax collections.
What they're saying: Advocates argue that Congress overstepped their powers by banning distilling in the home through a measure meant to prohibit fraud from commercial distillers, per the Associated Press.
- The government says Congress acted within its authority as the restriction was intended to stop producers from evading federal excise taxes, per AP.
- Lifting the ban, the government argues, could undermine Congress' authority to enforce federal tax laws.
Friction point: Both appeals courts agreed Congress' taxing power alone doesn't authorize the ban. They split over whether it is a permissible way to collect liquor taxes under the Constitution's Necessary and Proper Clause.
Reality check: You didn't hear this from us, but the practice of distilling hooch and moonshine still happens in the U.S. despite the federal prohibition.
- Some states, like West Virginia, allow some home distilling. But, much like marijuana, those state laws don't override federal law.
- Advocates hope the Supreme Court will strike down the federal ban and its associated criminal penalty.
Why distilling drinks at home is banned
Flashback: Congress banned distilling spirits in homes and connected properties in 1868, during the Reconstruction, as part of a crackdown on widespread tax evasion.
- The restrictions also cover certain premises where beer or wine is made.
Yes, but: Federal law allows Americans to brew beer and make wine at home, but not distill spirits.
- Distilling spirits requires a process that gives people a more concentrated drink and can involve fire hazards and dangerous contamination risks.
What happens if SCOTUS overturns the ban?
What's next: Even if SCOTUS strikes down the ban, this doesn't mean people can start distilling automatically.
- Federal alcohol-production rules could limit what people could do at home. The government currently requires permits, registration and tax compliance for the production of distilled spirits.
- States could also impose their own bans, which would limit what people can make in their homes.
The bottom line: SCOTUS could make it easier for Americans to produce their own liquor, but overturning the ban wouldn't necessarily mean anyone could legally set up a still in their backyard … yet.
