Fire Up Your Home Still!?! Maybe not just yet.

Taxation has always been associated with whiskey in the United States. The nation’s first excise tax, levied in 1791, was on whiskey, and was enacted to fund the national debt incurred during the Revolutionary War. Whiskey would be taxed again to fund subsequent wars, and it was brought back permanently on August 1, 1862 to fund the Union’s efforts in the Civil War.

As Congress tinkered with the tax to address rampant fraud and tax evasion, in 1868 it prohibited distilling at home. This prohibition has remained intact for the past nearly 160 years, but has been challenged recently. April 2026 has proven to be a monumental month for those court challenges.

On April 10, 2026, in McNutt v. US Department of Justice, the Fifth Circuit Court of Appeals held that the law was unconstitutional. But on April 21, 2026, the Sixth Circuit Court of Appeals upheld the ban. This is called a “circuit split” and it could set up review by the Supreme Court of the United States.

The 1868 law prevented a person from using “any still, boiler, or other vessel for purpose of distilling” located, among other places, “in any dwelling-house.” Since 1868, the law has been amended to prohibit distillation at any home, shed, or yard, on a boat, or practically anywhere else. If you violate it, expect a fine of up to $10,000.00 and five years in prison.

The Fifth Circuit held that the government got it all wrong by prohibiting home distillation through tax laws because by outright prohibiting it, there’s obviously nothing to tax. When there’s nothing to tax, the government is not raising any revenue, which is the whole purpose of taxation. The Sixth Circuit ruled that while maybe the tax law lost revenue from home distillers, Congress also could have concluded that prohibiting distillation anywhere other than a licensed distillery actually increased tax revenue due to the likelihood of tax evasion by home distillers.

Then each court went deeper into constitutional law—a provision of the Constitution that empowers Congress to make any law “necessary and proper” to implement the powers vested in the government. In a nutshell, it is an extremely broad power to do what it takes to support other Constitutional powers, and it has been used for things such as creating a national bank, regulating the environment, or drafting soldiers.

Here again the circuits ruled differently. The Fifth Circuit ruled that banning home distillation was neither necessary nor proper to support the right of Congress to tax because it criminalizes personal conduct and prevents taxation. The Sixth Circuit considered the rampant history of tax evasion by distillers that the 1868 law sought to solve by banning home distillation, finding that the ban was necessary to be able to collect federal excise taxes on spirits.

The contrary rulings essentially leave us where we were before either of them. Operating a non-licensed still remains illegal, and the government could argue another basis for enforcement, like the Commerce Clause. We are at the very early stages of a fight that is unlikely to be resolved for another five years or so.

Should home distilling be legal? Post your comments below!

POV: coming out of the woods on April 10, and turning back around on April 21.