A federal appeals court just struck down a law older than your great-great-grandfather’s moonshine recipe.
The Fifth Circuit ruled that the federal government’s 158-year-old ban on home distilling — enacted during Reconstruction to make sure Uncle Sam got his cut — violates the Constitution. The law made it illegal to produce spirits anywhere that wasn’t a licensed, government-approved facility. Beer? Fine. Wine? No problem. Bourbon in your basement? Federal crime.
Until now.
The Case: Rick Morris vs. the Entire Federal Liquor Apparatus
Rick Morris manufactures stills for legal distilling operations. He wanted to make bourbon whiskey at home for his brother and friends — not to sell, not to dodge taxes, just to enjoy the craft. When he discovered that it was a federal offense, he didn’t shrug and buy a bottle at the liquor store like a normal person. He founded the Hobby Distillers’ Association and sued the government.
The government’s defense? Home distilling is hard to tax. A distiller could hide the strength of the spirits, conceal the operation, and slip through the cracks. Therefore — and this is where the logic gets creative — Congress can criminalize the entire activity to prevent potential tax evasion.
The Fifth Circuit wasn’t buying it.
The Court’s Ruling: Congress Can’t Criminalize What Doesn’t Exist Yet
The court’s opinion cut straight to the constitutional issue: “Congress’s taxing power ‘reaches only existing subjects,’ not activity that may generate subjects of taxation”.
Translation: You can’t make something illegal just because it might create a situation where someone could evade taxes. That’s not taxation — that’s preemptive criminalization dressed up in fiscal policy.
The government argued that home distilling made enforcement difficult. The court said that’s not a constitutional justification. Difficulty doesn’t grant unlimited power.
What This Means for Hobby Distillers
This isn’t a free-for-all. You can’t set up a still in your garage tomorrow and start cranking out moonshine without consequences. The ruling doesn’t eliminate federal oversight — it just means the government has to regulate home distilling the same way it regulates home brewing.
The Hobby Distillers’ Association clarified that people can now obtain permits from the Alcohol and Tobacco Tax and Trade Bureau, comply with federal regulations, and pay applicable taxes. The difference is that the activity itself is no longer a federal crime by default.
Beer and wine have been legal to produce at home for personal or family use for decades. Spirits were the outlier — a relic of Reconstruction-era tax enforcement that survived long past its constitutional expiration date.
The Reconstruction-Era Law That Wouldn’t Die
The ban was enacted in 1868 as part of a broader law imposing excise taxes on distilled spirits and tobacco. The goal was straightforward: collect revenue. The method was blunt: make home distilling illegal so no one could hide production from tax collectors.
It worked for 158 years — not because it was constitutionally sound, but because no one challenged it hard enough until Rick Morris decided he wanted to make bourbon for his brother.
That’s how bad laws survive. Not because they’re defensible, but because they’re inconvenient to fight.
The Bigger Picture: Taxation vs. Criminalization
This case isn’t just about bourbon. It’s about the limits of federal power under the Constitution’s Taxing Clause. If Congress can criminalize an activity to prevent hypothetical tax evasion, there’s no logical stopping point. Every untaxed activity becomes a potential federal crime — not because it violates a law, but because it might make enforcement harder.
The Fifth Circuit drew a line. The taxing power is broad, but it’s not infinite. Congress can tax what exists. It can’t criminalize what doesn’t exist yet just to make future taxation easier.
What Happens Next
The ruling opens the door for hobby distillers nationwide to apply for permits and operate legally under federal oversight. The ATF will still regulate production. Taxes will still apply. But the blanket criminalization is gone.
The Hobby Distillers’ Association called it “a major victory” and “a turning point for hobby distillers nationwide”. For once, the hyperbole tracks — because this case rewrites the legal framework for an entire category of craft production.
Rick Morris wanted to make bourbon for his brother. Instead, he dismantled a 158-year-old federal ban and forced the government to justify its power under the Constitution.
Not a bad outcome for a guy who just wanted to share a drink.