Longtime Ban on Home Distilling May Finally End
On July 10, U.S. District Court Judge Mark Pittman in the Northern District of Texas ruled in the case of Hobby Distillers Association v. Alcohol and Tobacco Tax and Trade Bureau that the longstanding federal ban on home distillation of alcohol for drinking is unconstitutional. The ruling raises nuanced legal questions that will almost certainly be scrutinized on appeal. It also provides an occasion to ask a more fundamental question: Why is distilling spirits in one’s own home for personal use any of the government’s business?
The plaintiffs, which included aspiring home distiller Scott McNutt as well as the association, challenged two provisions of federal law. The first forbids locating a licensed spirits plant “in any dwelling house, in any shed, yard, or inclosure connected with any dwelling house.” The second makes it a criminal offense for anyone to use, or possess with intent to use, distilling equipment for the production of spirits, punishable by fines of up to $10,000 or up to five years in prison. Together, these provisions make any sort of home distilling illegal.
Pittman argues this prohibition can’t be justified under Congress’ taxation power or the Commerce Clause. Regarding the former, Pittman notes that while the prohibition may help combat tax evasion, it is not itself a tax and prevents home distillers from making reasonable efforts to welcome inspection of, and then pay taxes on, any spirits they produce. “Thus,” he concluded, “Congress did nothing more than statutorily ferment a crime—without any reference to taxation, exaction, protection of revenue, or sums owed to the government.”
Pittman’s decision tried to distinguish this case from the unfortunate Commerce Clause precedent granting the government expansive power to regulate private, noncommercial activity because of alleged connections to interstate commerce. The Supreme Court had in Wickard v. Filburn (1942) upheld penalties against a farmer for growing wheat for his own noncommercial use, and in Gonzales v. Raich (2005) the Court approved federal prohibition of home-grown medicinal cannabis. Those personal activities, the Court insisted, had substantial carryover effects on interstate commerce.
Pittman distinguishes the home distillation ban from those precedents by contending that the government does not “comprehensively” regulate the market for spirits as it did the markets for wheat during the New Deal or for cannabis today. Those comprehensive regulation
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