A lot of legal news has arrived in recent days that might be a bit more important, but here’s something that whiskey drinkers might be interested in. Last week a federal judge in Texas ruled that the 156-year-old federal ban on making booze at home is unconstitutional—moonshiners rejoice, because firing up that still in your backyard shed might actually be legal in the near future.
The judge’s ruling came in response to a lawsuit filed by the Hobby Distillers Association against the Alcohol and Tobacco Tax and Trade Bureau (also known as the TTB) last year claiming that the ban violated the Constitution. While making beer and wine at home is legal, distilling your own spirits could put you in hot water—it’s a felony offense that could land you in prison for up to five years with fines of up to $10,000. That includes having an unregistered still and distilling on your property, including “sheds, yards, or enclosures connected to a residence.” Of course, that hasn’t stopped many hobbyists from producing gin, vodka, or even whiskey at home in very small batches, but the potential legal ramifications are pretty serious.
The judge, Mark Pittman, agreed with the Hobby Distillers Association’s position. “The Constitution is written to prevent societal amnesia of the defined limits it places on this government of and by the people,” the judge wrote. “That is where the judiciary must declare when its coequal branches overstep their constitutional authority. Congress has done so here…” Pittman did recognize that the government might be able to assert its position in other ways, however. “But that is not the government’s last call,” he wrote, “because Congress may still take necessary and proper actions to effectuate otherwise valid power.”
Accoding to Pittman’s ruling, the government has two weeks to file an appeal. The government’s main argument seems to be centered on tax revenue—the alcohol industry is heavily taxed and provides a steady stream of cash to Uncle Sam. According to the Tax Policy Center, in 2022 excise tax revenue from alcohol amounted to more than $10 billion (distilled spirits are taxed at a rate of $13.50 per proof gallon). Judge Pittman, however, wrote that home distilling occurs on such a tiny scale that ending the ban really wouldn’t affect the government’s tax revenue at all.
So don’t break out your old copper still just yet, because it remains to be seen how this will play out and whether or not the government will successfully appeal the ruling. In the meantime, if you’re looking for some truly small batch, almost homemade spirits to try, there are plenty of craft and micro distilleries out there legally making whiskey, rum, vodka, and gin.
