Could you soon make your own moonshine? SCOTUS takes up 160-year-old ban

The Supreme Court has decided to review a 160-year-old ban on distilling alcohol in private homes, a ruling that could potentially change the legal landscape for home distillation in the United States. Currently, it is illegal to distill spirits, such as whiskey or vodka, at home, and violators can face up to five years in prison or a $10,000 fine.

This prohibition, which dates back to the Reconstruction era, is challenged in the case Department of Justice v. McNutt, which the conservative Fifth U.S. Circuit Court of Appeals found to be unconstitutional.

Advocates argue that the ban is an overreach of Congress's taxing power, as it was initially intended to prevent tax evasion by commercial distillers. However, the government contends that the restriction is valid under Congress's authority to enforce federal tax laws. Despite both appeals courts agreeing that Congress cannot solely rely on its taxing power to enact the ban, they differ on whether it is a permissible means of collecting liquor taxes under the Constitution's Necessary and Proper Clause.

The ban on home distillation was enacted in 1868 as part of a crackdown on tax evasion, and it applies to the production of beer, wine, and spirits. While Americans are allowed to brew beer and make wine at home, distilling spirits requires a more complex process that poses fire hazards and contamination risks. If the Supreme Court were to overturn the ban, it would not automatically legalize home distillation, as federal alcohol-production rules, permits, registration, and tax compliance would still apply. Additionally, some states may impose their own restrictions on home distillation.