Home Distillers Already Beat the Feds in the 5th Circuit. Now the Supreme Court Will Decide the 1868 Ban.

You can legally brew beer and make wine at home. Under an 1868 federal law, you can't distill spirits there. The law bans stills in "any dwelling house" or connected shed, yard or enclosure. Violators face up to five years in prison and fines, and their home can be subject to forfeiture.

On Monday the Supreme Court agreed to hear Department of Justice v. McNutt (No. 26-204) and decide whether that ban is constitutional.

Key facts:

• The challengers are the Hobby Distillers Association and its members. They include Scott McNutt, who has a home still he has used to make fuel alcohol, and Rick Morris, who makes stills. Federal regulators told them they couldn't get a license to distill at home because of the ban.
• A federal district court found the ban unconstitutional, and in April the 5th Circuit mostly upheld that ruling. It held that the ban doesn't raise revenue, so it isn't a valid use of the taxing power: it "amount[s] to an anti-revenue provision." The court also said that upholding the ban would let Congress "criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity."
• The 6th Circuit upheld the ban in a separate Ohio case, so the courts are split. Both sides asked the Supreme Court to settle it.
• Arguments will likely be next year, with a decision by late June or early July.

Why it's a win: Two federal courts have already sided with home distillers, and now the Supreme Court will hear the case. At stake is more than gin in your kitchen. The question is whether Congress can ban anything you do at home just because it might hide taxable activity. A ruling for McNutt would put a real limit on the Necessary and Proper Clause.

Winning wouldn't make it a free-for-all. Home distillers would still have to register their stills and pay excise tax. States like West Virginia have already legalized home distilling, and a bill in Congress would repeal the federal ban.

Sources: CBS News: "Supreme Court to decide legality of federal ban on distilling liquor at home" · NBC News · Reason: Damon Root

Image: Getty Images, via CBS News.