You Can Brew Beer In Your Kitchen. Make Whiskey And It Is Five Years In Prison.

The Supreme Court agreed Monday to decide whether the federal government can keep you from making whiskey in your own house.

Current penalty for the crime of owning a still in a dwelling: up to five years in federal prison and a ten thousand dollar fine.

You may brew beer at home. Legal. You may ferment wine at home. Legal. You may own a shotgun, operate a chainsaw, keep bees, raise chickens, weld in your garage and perform minor surgery on your own transmission.

Boil the beer you already legally made and separate the alcohol from the water, and you are a felon.

The law is from 1868.

Not a typo. Eighteen sixty-eight. Andrew Johnson was president. The Fourteenth Amendment was ratified that year. The transcontinental railroad was not finished.

Congress passed it because commercial distillers were dodging liquor taxes on a heroic scale, and the solution was to ban stills inside homes, where revenue agents could not easily go looking.

A hundred and fifty-eight years later, that statute is still on the books, and the government is in front of the Supreme Court defending it.

The government's actual argument.

Solicitor General John Sauer wrote that a distiller can more easily conceal an operation, or conceal a spirit's strength and avoid the proper tax rate, if the still is located at a dwelling house.

Translation: it is harder for us to search your house than your warehouse.

That is true. It is true because of the Fourth Amendment, which was specifically designed to make it harder to search your house. The government is citing the inconvenience of a constitutional protection as the reason for a criminal prohibition.

A Sixth Circuit judge made a similar point from the bench, reasoning that homes are harder to search than bonded premises and that many home distillers would not pay the duty anyway.

Would not pay. Might not. Could conceivably decline to.

We are now criminalizing an activity based on a projection of future tax compliance.

And here is the part that made us laugh out loud.

The Fifth Circuit, which struck the ban down in April, noted something the government has never adequately answered.

The ban does not raise any tax revenue at all.

It cannot. A tax applies to spirits that exist. The ban prevents the spirits from existing. You cannot collect duty on a bottle of whiskey that was never made, which means this is a tax law that generates precisely zero dollars in tax.

Congress's taxing power is being used to justify a statute that forecloses the thing being taxed.

The challengers.

The plaintiffs are the Hobby Distillers Association, which has about 1,300 members, and several individuals. One of them, John Ream, is a brewpub owner from Newark, Ohio who would like to make whiskey at his house for himself.

He sued. Four Texas hobbyists sued separately.

In April, two federal appeals courts reached opposite conclusions eleven days apart. The Fifth Circuit struck the ban down. The Sixth upheld it. Both losing sides appealed, everyone agreed the Supreme Court should settle it, and here we are.

Fifteen Republican attorneys general filed a brief backing the challengers.

The best line in the filings.

Ream's attorneys pointed out that under the government's theory of its own power, Congress could ban a long list of activities inside private homes. Cooking. Gardening. Working remotely.

That is not a slippery slope argument invented by a blogger. That is in a brief, filed in federal court, and the government has not offered a limiting principle that excludes any of it.

The challengers also noted that homebrewing revitalized American beer culture after it was legalized in 1978, and that home distilling could do the same for spirits.

They are right. Every craft brewery in your town traces back to somebody's garage, and that garage was illegal until Jimmy Carter signed the bill.

One sober note before you order a copper pot.

Even if the Court strikes this down, you still cannot necessarily fire up a still in your kitchen.

States regulate alcohol independently, and most of them ban home distilling too. West Virginia permits some of it. Your state probably does not. There are also genuine safety reasons distilling is treated more carefully than brewing, and anyone who has watched a badly built still behave badly understands them.

Oral arguments are expected early next year, with a decision by summer.

The thing worth remembering.

Somewhere in America right now there is a grown man who is legally permitted to brew forty gallons of beer in his basement, own a firearm, operate heavy machinery, and vote for president.

If he removes the water from the beer, five years.

The Supreme Court is going to think about that for a few months.