On October 19, 2026, the Supreme Court granted certiorari in Department of Justice, et al. v. McNutt, No. 26-204, which tests whether Congress may forbid the distillation of spirits at home. The case is about liquor, but the legal question is one every gun owner should recognize: where do Congress’s enumerated powers stop? Because the Court will answer it, some commentators have warned that the decision could boomerang on Judge James Wesley Hendrix’s ruling against the National Firearms Act. It cannot. My analysis is that McNutt is a one-way ratchet.
The Split Behind the Grant
The Fifth Circuit decided McNutt v. U.S. Department of Justice, No. 24-10760, on April 10, 2026, in a published opinion by Judge Edith Jones. It held that the federal ban on locating a still in a dwelling house, 26 U.S.C. § 5178(a)(1)(B), backed by the criminal penalty in § 5601(a)(6), exceeds Congress’s power. The court wrote:
“We concur that, while venerable, the statute violates the Constitution’s Taxation and Necessary and Proper clauses.”
Its reasoning turned on revenue. The panel found that the provisions do not raise any:
“Because these provisions tax nothing, and are distinct from the regulation of distilling alcoholic products that is permitted by federal tax law, they do not help Congress raise revenue.”
The Sixth Circuit reached the opposite result in Ream v. U.S. Department of the Treasury, 174 F.4th 480 (6th Cir. 2026), where Judge Raymond Kethledge upheld the ban as necessary and proper. That decision was not unanimous. Judge Mathis dissented on standing. The government’s petition describes a direct conflict between the circuits and presents McNutt as the cleaner vehicle, since Scott McNutt received a warning letter that gives him a concrete injury. The Fifth Circuit did not rule on a Commerce Clause theory, because the government forfeited that argument on appeal. The holding rests on the Taxing and Necessary and Proper Clauses alone.
The Question the Government Presented
The question presented comes from the government’s petition, filed by the Solicitor General’s office:
“Whether the prohibition on the production of distilled spirits in particular locations, including ‘in any dwelling house’ or ‘in any shed, yard, or inclosure connected with any dwelling house,’ 26 U.S.C. 5178(a)(1)(B), is necessary and proper for carrying into execution Congress’s enumerated power to lay and collect taxes.”
The government’s theory is straightforward. Congress has taxed distilled spirits for generations. After documenting evasion, it licensed stills and barred them from residences. The ban, the government says, is a means of collecting a tax that exists. The Fifth Circuit answered that a prohibition cannot be a tax measure when it prevents the taxable product from coming into existence.
Why a Government Win Cannot Reach the NFA
Judge Hendrix’s August 5 judgment in Silencer Shop Foundation v. ATF and Jensen v. ATF turned on a single structural fact. The One Big Beautiful Bill Act, signed on July 4, 2025, reduced the $200 transfer tax on suppressors, short-barreled rifles, and short-barreled shotguns to zero, effective January 1, 2026. With no tax left to collect, the registration and approval apparatus had no Article I footing.
That is exactly where McNutt diverges. A distilled-spirits excise tax remains on the books in 2026, and the government’s whole argument depends on it. The ban, it says, protects that tax. Even if the Court accepts that reasoning, it will have decided only that a prohibition is a permissible means of enforcing a tax that exists. No such tax now attaches to the transfer of a suppressor or a short-barreled rifle. A ruling for the government therefore leaves the NFA question where Judge Hendrix found it. The registration scheme still protects nothing, because there is no revenue to protect.
Why a Challenger Win Helps Us
The other outcome carries real value. If the Court agrees with Judge Jones that a prohibition which taxes nothing and raises no revenue cannot be justified under the Necessary and Proper Clause, it will reaffirm that Congress may not pass a regulatory measure and call it a tax measure. That principle is the same one on which the NFA challenge was built. The federal government is a government of enumerated and limited powers, and the Necessary and Proper Clause is not a free-standing grant of police power. A decision restating that limit strengthens every claim that the NFA’s remaining controls are regulation in revenue clothing.
I want the government to lose McNutt. One outcome is neutral for the NFA fight and the other is favorable, so I see only upside.
What I Expect, and What I Do Not Claim
I do not expect any boomerang effect on the Hendrix judgment, which I regard as durable for reasons I have set out in earlier analysis. That is my prediction, not a holding. The Court has not set an argument date, and any forecast of when it will decide is only that.
When someone claims that the home-distilling case endangers the NFA victory, the answer is that the two cases share a constitutional theme but not a constitutional fact. One involves a tax that still exists. The other involves a tax Congress eliminated.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.