The Andrew Branca Show
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BAN on Home Made Bourbon STRUCK DOWN by Federal Court!
Posted
April 13, 2026
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This past Friday the U.S. Court of Appeals for the Fifth Circuit handed down a landmark ruling in McNutt v. DOJ, striking down the federal statutes that have criminalized home distilling for over 150 years.
The law, rooted in an 1868 tax act, made it a federal crime — punishable by up to five years in prison — to operate a still in any home, yard, shed, or enclosure connected to a residence.
Remarkably, the basis for striking down the home distillation ban was the court’s finding that the Federal government had exceeded its Constitutional tax authority—in other words, a court recognized that the federal government does not have infinite authority to suppress the liberties of American citizens simply by calling that suppression “a tax.”
Today we’ll break down the Fifth Circuit's full reasoning, which rests on two constitutional pillars: the Taxation Clause and the Necessary and Proper Clause. I’ll explain exactly what those constitutional tests mean, how the court applied them, and what the government got wrong in its defense.
This ruling is not the end of the story — a parallel case, Ream v. DOT, is currently pending before the Sixth Circuit, meaning there's a real possibility of a circuit split and eventual Supreme Court review. And while this decision enjoins federal enforcement, state laws on home distilling remain separately on the books.
Andrew breaks down what the ruling actually does and doesn't do, what comes next legally, and why this case matters well beyond whiskey — as a serious check on the federal government's power to criminalize what Americans do inside their own homes. Subscribe to The Branca Show for expert legal analysis you won't find anywhere else, and drop your questions in the comments.
Join me LIVE at 11 AM ET as I break it all down!
Episode #1283.
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