US appeals court declares 158-year-old home distilling ban unconstitutional
nypost.com262 points by t-3 6 hours ago
262 points by t-3 6 hours ago
Do this one next:
https://en.wikipedia.org/wiki/Gonzales_v._Raich
The Supreme Court somehow held that the feds can regulate what you do in your own home (in this case, growing marijuana for personal use) because it could have a butterfly effect on the interstate price. (Constitutionally, the feds can only regulate _interstate_ commerce.)
I think much more likely is that it will just be made legal federally sometime in the next decade. Marijuana legalization has majorities across ideologies (https://news.gallup.com/poll/514007/grassroots-support-legal...) and even though the inability to create federal law on something so popular seems like a good case study on how the US system doesn't always do a good job representing it's actual people, it seems to be at a critical mass where it can't be ignored for much longer. Even my parents' friends who are conservative have started doing weed.
I think the issue is this isn't seen by politicians as a motivating vote driver. It is, however, a motivation for someone to go out and vote against a politician.
That's ultimately what keeps things like MJ illegal. There are just far too many people that will get upset about it if it were made federally legal.
My state, Idaho, has one such politician that is constantly bringing up and trying to find ways to keep the wacky tabacy out of the state. Including trying to amend the state constitution for it. He does this because he's mormon and the mormons are scared of the devil's lettuce.
This gets at something I think a lot of people don't really understand. They see polls that show strong support for policy X, and then complain that politicians don't enact it. What they fail to consider is that while a strong majority may be in favor of the policy, it's not the top (or top 3) priority, and they will support candidates that have the opposite position on X, if they support their top priority.
This is situation where well thought out (and moderately constrained) referendum process can help achieve the majority desire for a policy that would not otherwise be considered important enough to drive the selection of representatives.
Mormons voted strongly to legalize MJ in Utah. Maybe your politician is just an odd man out?
edit: Well, I should note the Utah vote was only for "medical" MJ.
It got through via a ballot initiative. It wouldn't have been passed by the legislators in UT without that.
That's why the guy in my state, C. Scott Grow, has also been fighting to make ballot initiatives harder. He's terrified that an MJ initiative would make it's way in that way.
Republicans in Utah are also trying to remove the power from ballot initiatives because they're upset the Utahans passed an anti-gerrymandering initiative.
Yaeh this is a thing states do. South Dakota went in cahoots with the courts to cancel the ballot initiative to legalize weed, and California went in cahoots with the courts to sabotage prop 8 (the banning of gay marriage).
You should argue with him he's acting like Satan. The mormons (I used to be one) say that Satan wanted to force everyone to be good, Jesus wanted each person to have free will and choose.
I personally would be okay with having it legal if smoking could still be banned in multifamily complexes. I don't care if my neighbors are using edibles, but since I know that legalized weed means more smoke coming from my neighbors' balconies, I will always vote "No" when marijuana legalization is on the ballot in my location.
Can smoking tobacco be banned in multifamily complexes currently? I'd think the policy would be the same.
HOAs tend to manage this kind of thing
Lol, yes, subsidiarity.
HOAs, the lowest level of US government.
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You've made about a dozen comments in this thread and they've escalated from "HOAs are unconstitutional" to "I'd rather shoot my fellow citizens than be drafted if weed isn't legal" to "driving high is fine, I've done it for decades." Each one a little more unhinged than the last, which is an accomplishment given where it started.
It reads less like a coherent political philosophy and more like someone who's been hitting the sacrament a little too hard this morning.
I smoke your "sacrament" daily, and cigarettes, and I'm terrified that people will think you're representative of either of those classes, or even a minority of them.
Most people in this thread broadly agree with you that marijuana should be legal. You're somehow picking fights with your own allies because they had the audacity to say they don't like the smell, or that driving impaired is bad. You're not defending freedom, you're being contrarian and hostile to anyone who doesn't arrive at your exact position with your exact intensity.
And the driving thing isn't a matter of opinion. "I've done it for decades and never caused an accident" is the exact argument every drunk driver makes right up until they do. Your anecdotal survival is not evidence of safety.
So you're OK if it's legal, as long as it's not legal.
You're OK with people being thrown in prison, because you don't like the smell.
And you wonder why people call you a selfish nation full of selfish people.
VOCs and carcinogens are a health hazard. Asthma, kids development, allergies, and occasional migraine trigger.
It’s not random we call it ‘dank’ or ‘skunk’ and if it’s good it should piss off your neighbours.
It’s 2026. Dry flower vapes get you higher, with less product, and sparing the lungs. They have a smell more in line with popcorn than a cigarette. They come in everything from one-hitter to portable-volcano. Fans exist too.
> VOCs and carcinogens are a health hazard. Asthma, kids development, allergies, and occasional migraine trigger.
This is the foundational reasoning for making perfume, air fresheners, deodorant, and scented cleaning supplies illegal to possess or use.
I don't think it's unreasonable to desire to be free from the noxious odors of others.
> The right to waft my smells in any direction ends where your nose begins.
- Abraham Lincoln or Ben Franklin or Mark Twain or someone
It's not just because marijuana "smells bad". Secondhand marijuana smoke contains many of the same toxic chemicals as secondhand cigarette smoke and likely is similarly deleterious to your health [1]. I also believe everyone should have the right to be able to open their windows and have clean air come through. Smoking on balconies denies people this right. Edibles only effect the user and therefore should be permitted.
[1] https://www.cdc.gov/cannabis/health-effects/secondhand-smoke...
If you think it's proper to put me in a cage because you don't like the smell of the sacrament that I smoke, I think it's OK to throw you off the nearest 13th story balcony.
I'm certainly not going to, say, be drafted into a world war to fight and most likely die for people who want to throw me in a cage. I'd rather shoot them instead.
EDIT: inb4 the guy who pops in with the government "study" claiming weed smoke is bad. What a shock that Uncle Scam would come to such a self-serving conclusion! Please, CDC, tell me more.
Meanwhile I am way healthier than the majority of people on this forum. It's been decades since I was sick--how about y'all? How full is your pill cabinet, on a scale from 0 to "the average American has 11 prescriptions"? NONE in mine. Guess I'm not a drug abuser like most of y'all.
And as for the Karen who replied above to cry about my "unhinged" statements, the point is it is you people who are--in actual reality, where I reside--unhinged. You're either petty tyrants or in league with petty tyrants, and your protestations about my opinions or actions are of zero concern to me.
The bottom line is this: I smoke weed every day, illegally. I also grow weed, illegally. I also breed my own weed varieties, illegally. I acquire seeds illegally. I give seeds away illegally. I drive while high as fuck illegally, and do so quite safely, opinions of idiot Karens be damned. I'm high right now, sitting here with a corncob pipe full of weed while writing this very comment, on a throwaway account, and a throwaway internet connection that cannot be traced--so you can see that I am quite functional in my use of English while high, also. In point of fact I can run circles around you, physically and intellectually--and I am aware of this fact, even if you are not.
To bring it back to the actual subject of this article: I distill my own whiskey too, illegally, with exactly zero fucks given as to yours or anyone else's opinion on the subject. And it's some of the finest, cleanest, purest moonshine there is. It's like sipping water. Nothing store bought can compare.
Uncle Scam is the last person whose opinion I would respect concerning my freedom to act as I please. I learned long ago how crooked this nation and its people are, and I have taken precautions to ensure my continued freedom in a world that is sliding continually toward chattel slavery.
To summarize: I get to keep doing exactly what the fuck I want to do concerning this weed, or alcohol, or any other substance I choose to use or experiment with--PERIOD, END OF DISCUSSION. There is simply not a damn thing you can do to stop me or my people. We will stop YOU first.
It doesn't have to be criminally illegal. Instead it could simply be civil. The apartment complex, which you do not own, would be the ones setting the rules here.
And you, of your own free choice, would have the choice to either follow the rules or go live somewhere else. The person you are responding to doesn't have an issue with you smoking in your own purchased home. Instead this was about apartment complexes.
And it wouldn't even have to be a law applied to you. It could be applied to the apartment complex. Apartment complexes already have to follow lots of laws. So they could simply be required to have this as a rule.
And then you, could make your libertarian choice to live there or not. Its not your apartment complex after all. And since its someone else property, they would absolutely have the free to make you not do this in their own property.
Oh good grief. This is such an uninformed and unnecessarily belligerent take.
We can and do have public nuisance laws which kick in when an individual is impinging upon the health, safety, comfort etc. of other people. This exists in jurisdictions all over the world for all kinds of things, the penalties are usually minor and applied only to repeat offenders. It is completely reasonable for someone to support the idea of these applying to marijuana use, in fact, in most jurisdictions where marijuana is legal, they probably already do. Yes, repeatedly stink up your neighbor's apartment and you may get a warning followed by a fine, deal with it. Your parent is not a Nazi and is not throwing stoners in prison. Perhaps go touch grass instead of smoking it now and then.
I don't even smoke - it just offends me deeply to see the Supreme Court rule in a direction that's so blatantly against the Constitution.
You’re probably right, though I dread the possibility. I cannot stand the smell, and one of the best things about moving from California to Texas was avoiding that pervasive smell being everywhere. Negative externalities of personal behavior really need to be handled better in our society. If you want pot to be legal, fine, but only inside your own personal enclosed house.
That's only one of many ways to consume it, many people vape, have edibles or drinks and you just don't notice.
Even as a daily weed smoker myself though, it's hard not to acknowledge that a more liberal marijuana stance in a geographic location does lead to that smell being more commonly encountered when in public and out and about.
Personally I don't mind, almost the opposite, but for people who don't like the smell, obviously they feel differently. Good thing we can have different policies in different places, and people can generally, one way or another, move themselves to other places. Could be easier, but could also be way worse.
As a daily weed smoker, I live out in the middle of the woods, but even that isn't enough to stop the Way Better Than Thou types from wanting me thrown in prison and/or excommunicated. There is no escaping these violent, self-righteous, arrogant busybodies.
Meanwhile, I smoke weed in my office, but I have a air purifier (rated for double the air flow capacity of the room) and not even my wife who works in the room next door can smell anything, and she actively despises the smell.
Sometimes you just need to find the right equipment :)
Some people say the same about the smell or noise of babies. It's not a very strong argument for getting ones way in controlling others.
Are you ok with ciggarete smoke then if you are ok with marijuana smoke?
Yep. Why wouldn't I be? I'm not a brainwashed Karen. "Freedom" isn't just a word that I use--it actually means something to me.
> but only inside your own personal enclosed house.
Isn't it usually illegal to smoke things like cigarettes inside rented homes, legality aside? And don't most people rent? That seems like a whole can to deal with.
THC is perfectly legal here (Quebec, Canada) and believe me, there is no smell on the streets!
What is actually disgusting and happens often in the streets is the smell of ordinary cigarette smoke.
It's not legal where I am at all and I get hotboxed on my morning drive to work every day...
The fact that so many people think it's fine to get high and drive is baffling to me.
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It still negatively affects your ability to drive. You shouldn’t be taking anything that negatively affects reaction time or attention and drive.
I’m pro legalization but definitely not pro reckless behavior like that
This might be controversial, but smelling either in public makes me happy! Now the stale smell of tobacco-infused clothing, that is awful.
It's legal in many states here. In SF it's absolutely everywhere and disgusting. Austin smells like tobacco and it's much better to my nose.
What you smell as "disgusting" smells amazing to me.
Some of these perfumes that people drench themselves with smell disgusting to me. But I don't look for them to be thrown in prison or taxed for it.
If you like the smell of tobacco (and I do also) then you'd better band together with weed smokers regardless of whether you like weed or not, before the Karens succeed in making it all illegal and banned along with anything else that helps one escape from the prison they are building.
Oh no, the thought of catching a whiff! No one must smoke in texas, since you know, everyone follows the law. Smoking weed only started in general with legalization. It was mythical beforehand.
I mean, there are plenty of neighborhoods in CA that don't have that smell...
There just no smell like this in any neighborhood outside of college campuses and area close to those.
You might get a whiff here and there, but you're going to encounter a lot of smells you don't like here and there.
The controlling case is Wickard v Filburn (1942).
A farmer was told he could only grow X acres of feed on his own land; feed that he had no intention of selling and was being fed entirely to his own livestock on the same land.
This seems to overturn that in part, but until Wickard is overturned, and the interstate commerce clause reigned in, there will be weird side effects of it like this.
Circuit courts may not overrule Supreme Court precedent. Accordingly, this decision purports to rest on the “Necessary and Proper” clause, avoiding Wickard (decided on commerce clause grounds)
How does the supreme court revisit precedents if the circuit court doesn't readdress the issue?
The party that wants the precedent reversed loses in the lower court (because the lower court is bound by current Supreme Court precedent) and appeals to the Supreme Court. The canonical historical example is Brown v. Board of Education, which was appealed to the Supreme Court explicitly to ask them to reverse Plessy v. Ferguson, which lower courts had relied on as precedent.
Somebody has to bring a new case that presents a novel legal theory/presentation that isn't clearly addressed by the ruling that forms the precedent.
Additionally, one can argue that the state of the world has changed enough that assumptions made by the USC at the time of precedence require reversal.
In particular, Necessary and Proper as it relates to the taxing power, which the challenged statute relied upon, having been passed decades before the scope of Commerce Clause powers began their expansion, let alone Wickard v. Filburn.
> Circuit courts may not overrule Supreme Court precedent.
That's a Supreme Court opinion that only applies if the new case reaches their docket and gets reaffirmed.
There's a lot of context (behind Wickard v Filburn) which would obviously not apply to anyone distilling for personal consumption:
I'd imagine one wants to litigate Wickard v. Filburn in its entirety, rather than just the downstream Gonzales v. Raich
You have identified a root perversion. Roscoe Filburn’s wheat did not leave Ohio or even his farm. He didn’t offer it for sale; the wheat was for his own use. It was deemed to “affect interstate commerce” and thus within the scope of the interstate commerce clause. With that, a provision intended to remove power of states to tax each other’s goods and services and promote a free trade zone instead became a mechanism to nitpick and micromanage every last little detail, ossify existing practice, protect large players, give loopholes to the politically connected, and enable mass regulatory capture. It cannot be overturned quickly enough.
I don't see SCOTUS ever overturning Wickard, sadly. Too many federal programs and regulations would lose their legal basis if that happened.
You’re almost certainly correct. Kagan, Sotomayor, and Jackson would argue this consequentualist line. Thomas, Alito, and Gorsuch could be persuaded by textualist or originalist arguments and are the most likely overturn votes. Kavanaugh was a key man on standing up and defending the so-called PATRIOT Act during the George W. Bush administration, so no way he knocks out this pillar.
ACB talked a strong originalist game during her confirmation but since shown it’s not her core philosophy. Although Roberts appears inclined to rein in the administrative state, he’s aligned chaotic neutral and thinks himself too clever.
Already down 4-3 and having to persuade both Barrett and Roberts to join a ruling overturning parts of Wickard, another Dobbs seems wildly unlikely even though both precedents were poorly reasoned. At best, they agree to some marginal or technical reduction in scope. It seems equally likely that she sides with the four, in which case, what does Roberts do? He may need to make it 6-3 to control who writes the opinion. Such strong numbers would be unfavorable enough on the surface that he might persuade her back to an even more tepid limitation. The concurring opinions that it would induce from Thomas, Alito, and Gorsuch would be entertaining reading, at least.
Please suggest one, but ideally three, things that you think that overturning Wickard would lead to that would cause K, S & J to vote against doing so?
I call BS. Wickard is about, effectively, "police power" based on a broad interpretation of the scope of federal/interstate commerce.
As noted by other commenters, the concept of federal control of interstate commerce was intended to prevent states from interfering with trade between themselves and other states, and to create some "higher" authority for aspects of commerce that truly transcended state borders and control.
Most of what has happened in terms of programs and regulations fits very comfortably into that understanding. What doesn't, which I don't think is a lot, should probably go away anyway.
In Gonzales, O'Connor dissented and Scalia, who was too afraid of pulling the rug out from under the administrative state, issued a concurrence. So, surprises do happen.
Drugs were always a weird exception to what was otherwise pretty consistent jurisprudence on Scalia's part.
That would also invalidate the civil rights act, as the (similar) 19th century CRA was already struck down because the 14th amendment binds against discrimination by public not private actors. The reason why the modern CRAs weren't also struck is because they rested on the laurels of Wickard v Filburn declaring the CRA (this time) is about regulating "interstate" commerce.
That would be an improvement in the same spirit, as the modern CRAs are also unconstitutionally limiting over what one chooses to do with their own property. The scope should be limited to government-involved services and facilities, as those must serve all possible taxpayers. We live in a more connected, option-saturated information age where even bigots more often than not understand the utility of at least doing business politely and making nuanced exceptions. Egregious offenses are corrected by social pressure and business competition. The current regime of ambulance-chasing liabilities inserted into every organizational, contracting, and hiring process harms far more people of every race and sex than it helps.
>Egregious offenses are corrected by social pressure and business competition.
This doesn't work when bigots are willing to pay a premium for discriminatory services.
Also, do you feel the same way about the FHA and Title VII? Those also involve regulating what you can choose to do with your private property, but I don't want to assume that you don't consider housing and employment to be distinct from, say, hotels and grocery stores.
fixing the interstate commerce clause is one of those things that needs to be done eventually, but will likely never be done - even if just to "fix" it so everything remains the same but is based on simpler allocation of powers than through a "loophole".
In Wickard v. Filburn, back in 1942, they said the same thing for wheat.
You say that like interstate commerce regulation was more egregious for wheat than it was for marijuana.
But Raich is significantly more egregious: the theory on which the government won Wickard v. Filburn, that private consumption of wheat could affect the interstate market for wheat, doesn't even apply, because there can be no interstate market in a substance that is illegal to trade.
>there can be no interstate market in a substance that is illegal to trade.
There is in fact an interstate market in many substances that are illegal to trade because laws against things do not make those things fail to exist.
No market that the federal government can recognize, tax or regulate
The reason marijuana is Federally illegal in the first place is because the commerce clause is interpreted to allow it.
Our companion case in the Sixth Circuit tees up the issue:
https://www.buckeyeinstitute.org/issues/detail/ream-v-us-dep...
See the opening brief.
Thank you for your work here. Overcoming the argument that a threat of prosecution doesn't create standing is a huge advancement for the cause of freedom-- in light of Babbitt the state never should have been arguing otherwise nor should the lower court have ruled that way but they were and that line of argument is protecting a lot of facially unconstitutional law.
I suspect that if that ruling was made, then many other drugs being made at home for personal use might become legalized, at least unless states decide to go and ban it too. Note that I am not taking a position here on if that's desirable.
That's arguing around the point.
If the law is broken, fix the law. Don't pervert logic to pretend that the existing law dictates what you want is correct.
If Roe v Wade is based on faulty logic, cool - overturn it. But it then becomes Congress's responsibility to replace it with the correct version.
The federal government isn't supposed to police people's personal behavior. "Federal" comes from "federation" as in, the group of states in the union. It's the job of the legislature to write the laws, the job of the judiciary to interpret the laws, and the job of the states to do these things for areas that don't rise to the level enumerated in the Constitution.
When you get it twisted, you end up with this tug-of-war where corrupt politicians try to put biased judges on the bench to mold the rules to their whims without actually having to pass them.
> If the law is broken, fix the law
If you follow that argument to its conclusion, you end up at: fixing the law requires amending the Constitution, and if the law for amending the constitution is broken, the remedy is revolution. Most participants prefer the current practice instead.
Many American treaties (with other nations) prohibit both/either parties from decriminalizing marijuana among other drugs.
Links:
discusses some of the treaties:
https://www2.nycbar.org/pdf/InternationalDrugControlTreaties...
History of illegalization of pot:
It's not about decriminalizing marijuana - it's about the absurd assertion that the federal government can regulate what you do personally because "yadda yadda yadda…interstate commerce!"
Yes, regardless of that specific case I'm hoping to see a series of Supreme Court decisions that will eviscerate federal government power over internal state affairs and restore the original intent of the 10th Amendment. Long live federalism.
We’ve already seen states try and regulate outside their borders; TX with abortion as one example. How does a weaker federal government protect against this, or do you believe it should not? And how does this not devolve into 50 fiefdoms?
If they reversed Gonzales v. Raich they'd be under a lot of pressure to reverse Wickard v. Fulburn, which would have such wide ramifications I just don't see the court doing it no matter how warranted.
Another case based on interstate commerce: the US ban on racial segregation. The example given, iirc, was restaurant competition across state lines.
The interstate commerce clause is just craziness. It touches everything and gives justification to regulate nearly anything.
A lot of stuff does have interstate implications. Especially now that most corporations operate in an interstate fashion.
That said, I agree that it's overused. I personally think that the 9th amendment should be used in a lot of cases, like civil rights, instead of the interstate commerce law.
The supreme court, however, has basically decided that the 9th amendment doesn't really exist.
You could just as easily stuff most of those things under the "general welfare" clause if you do the same rigamarole of years and years of precedent hand-waving. We live in a post constitutional state. The constitution is just something worked to backwards so the guys who function as our priests/gods point to the document because that's the only way to feign some sort of legitimacy to our government.
Ultimately none of us signed the constitution and all of those people that did are dead. It is a religious artifact used by the whig -god people to argue they are right. Not something followed with faith to the historical context nor literal contract.
(edit: to below trying to compare bad-faith ICC to good-faith general welfare, you must apply similar levels of creativity and bad faith. Ban things through high or impossible to pay taxation. "Tax" behavior to force people to do something in a certain way, make very heavy penalties for not paying the tax, and also make it extremely difficult to buy the tax stamps (this is how they did drug control until they decided to use the new fraud of "interstate" commerce).
General Welfare Clause only applies to taxing and spending, though, not just general regulation (e.g., making drugs illegal or banning segregation).
For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars … But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!
Federalist No. 41 https://avalon.law.yale.edu/18th_century/fed41.asp
I agree, from the other side of the aisle. The Constitution is merely a well-guarded piece of toilet paper now. Culture matters way more than legal documents in preserving a nation, and our culture has waned too significantly. I believe we've entered the "Byzantine" phase of America.
I wouldn't be surprised if this one unironically goes given that Uber/Lyft are fully doing "women only" ride shares now.
Gen Z / Alpha have embraced X-"realism" and fully accept essentialism/reject "intersectionality". They're far more conservative/prudish than millennials, even at their young age.
> Gen Z / Alpha have embraced X-"realism" and fully accept essentialism/reject "intersectionality". They're far more conservative/prudish than millennials, even at their young age.
This does not meet up with my experience with them at all.
Just quick check, what percentage of onlyfans creators are Gen Z / Alpha vs other nonsense year demographics?
I think there's a selection effect there that makes it an unrepresentative sample.
First, Gen Alpha is in their teens, so it's kind of hard to say what is happening there or will happen.
Second, there is a growing divide between gen Z males that are skewing conservative in some ways. Their church/religious attendance is up, but overall attendance is still down.
Gen Z females that are the most liberal demographic in history.
The split is both political/social.
(US analysis)
>Their church/religious attendance is up
This was debunked, at least in the UK. Not sure about the US but I'll bet it's the same sham (church sponsored) statistics.
I think more of each generation is coming to realise that religion is an outmoded parasite.
I looked at the actual decision [1] and didn't see Filburn mentioned once. I find that odd. Filburn [2] was a controversial and far-reaching decision that said that the Federal government's ability to regulate interstate commerce extended to people growing wheat on their own property for their own use. The rationale was that by growing wheat you weren't participating in the interstate wheat market. That seems like a wild interpretation to me but it's Supreme Court precedent at this point.
So I found this footnote:
> The government does not challenge the district court’s Commerce Clause analysis on appeal. Accordingly, any such argument is forfeited, and we do not address it.
That's interesting. Here's a legal analysis that does bring up the Commerce Clause and Filburn [3]. I really wonder why the government didn't raise this issue.
I knew just from the headline this was going to be a 5th Circuit decision, and it was. This is the same circuit that is perfectly fine to override "state's rights" for other issues.
[1]:https://www.ca5.uscourts.gov/opinions/pub/24/24-10760-CV0.pd...
[2]: https://en.wikipedia.org/wiki/Wickard_v._Filburn
[3]: https://www.yalejreg.com/nc/reviving-the-commerce-clause-one...
It's possible that the government thought that if they did try to challenge the Commerce Clause analysis, then the Supreme Court could have struck down Filburn. They'd much rather lose narrowly on this specific case than have Filburn reversed entirely.
SCOTUS did a pretty hilarious soft "strike down" of Wickard where they basically determined the gun free school zone act (GFSZA) violated interstate commerce clause. So congress just added "in interstate commerce" to the GFSZA and now it does the exact same thing even if there was no interstate commerce involved, and nothing involved ever crossed state lines or actually entered interstate commerce.
So SCOTUS basically solved this by saying the law had to say "in interstate commerce" but it is basically just there as a talisman to ward away challenges, a distinction without any difference as it becomes a tautology.
That seems like a pretty over-reaching interpretation. It makes sense in the context (needing to support federal economic control during WW2). But in some sense the economy is a dynamic system that touches and is touched by almost every decision we make. I made a pot of coffee this morning, should the federal government have the ability to decide whether or not I’m damaging the cafe market by not supporting my local cafe?
The word "interstate" does not exist in the text of the Constitution.
There's arguably some merit to your position, but the argument that some case law is invalid because it doesn't meet the definition of a term defined in other case law is circular and incoherent.
It uses the phrase “regulate commerce between the states” which effectively has the same meaning.
No. It absolutely does not use that language, and it baffles me as to what would cause you to say that it does.
Please endeavor to say only true things.
You're working awfully hard to be pedantic without comparing the actual language:
> to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"
The problem is if you say the government can’t regulate MJ, then all drug regulations fall apart.
On one hand you should have a right to buy whatever you want at 21( which should be the minimum enlistment age), but I’d be concerned about Billy selling homemade GPLs or whatever.
> The problem is if you say the government can’t regulate MJ, then all drug regulations fall apart.
No, that's not what's being said. If you grow your own plant for personal use, there's no need for the federal government to be involved. If you grow that plant and then try to sell it, then there's some commerce which does fall under some regulation (we'll leave the interstate nuances aside). Having the fed being allowed to say you cannot grow in your house is one step away from saying you are only allowed to perform missionary position (no other positions are allowed) between the hours of 7-8pm, but not at all on Sunday.
Okay. So if you decide to visit a friends house does him sharing still count as personal use ?
In many communities you have a guy who cooks plates of food and sells them. While technically this is illegal with out a permit, it’s usually tolerated.
I’m all for the legalization of everything for adults, but it’s a very complex issue. Education is the way here, not punishment
No one argues these things are not able to be regulated. Instead, per the 10th amendment, it must be left to state law since Congress does not have unlimited power and may only legislate where power has been granted to them by the constitution.
And before people say you are being hyperbolic, the government still regulates sex positions. Sodomy is illegal in 12 US states.
Not the federal government, however.
There are specific prohibitions on certain categories of state laws, like granting titles of nobility, creating non-gold/silver currencies, etc. The federal government cannot constitutionally regulate sex positions, because anything not explicitly covered in the Constitution is reserved to the states, or the people. In that broad grant, however, the states individually can make or avoid making law on any topic.
As others have mentioned, the Supreme Court has frequently worked around the Constitution for reasons that made sense to them at the time, including the original ruling that this one overturns.
>The federal government cannot constitutionally regulate sex positions, because anything not explicitly covered in the Constitution is reserved to the states, or the people.
That being said, there's probably not a constitutional way to enforce laws regulating sex positions. Even if you don't agree that such laws are clearly discriminatory in intent (let alone impact), the privacy violations necessary to prove guilt "Beyond a reasonable doubt" almost certainly violate the Fourth Amendment, and any theory of harm would implicitly (if not explicitly) rest on religion.
This is all assuming you don't accept Griswold as a reasonable constitutional argument that pretty obviously would extend to the kinds of sex people have.
> That being said, there's probably not a constitutional way to enforce laws regulating sex positions.
Right, but until someone gets arrested for this, nobody has standing to challenge the constitutionality of the law itself. It is one of those unenforceable laws. Even biblical law required witnesses (never just one) before being able to prove adultery.
I believe the original idea of the Constitution was that most things would be regulated at the state level.
This is pretty much already the case with marijuana, where it's illegal at the federal level, but in practice if it's legal in your state then it's legal.
> I’d be concerned about Billy selling homemade GPLs or whatever.
Would it be better with a BSD license?
The entire 10th amendment is basically being ignored because interstate commerce policies and rulings. For that matter, the 1st, 4th and 5th aren't being upheld either.
> [Judge Edith Jones] also said that under the government’s logic, Congress could criminalize virtually any in-home activity
Also, this line is quite funny on its own because while understand what she actually meant, it can be very easily reinterpreted as "only actions committed out-of-home should be crimes; murdered someone in your home? welp, our hands are tied, have a nice day".
I think the point is that murder is handled by the states, not Congress. This is about what the federal government can do, not all government.
Murder can be federal crime if it involves:
* the murder is of a federal judge or a federal law enforcement official
* the killing is of an immediate family member of a federal law enforcement official
* the murder is of an elected or appointed federal official
* the killing is committed during a bank robbery
* the killing takes place aboard a ship at sea
* the murder was designed to influence a court case
* the killing takes place on federal propertyAnd in some locations, the federal government holds exclusive jurisdiction, so they better enforce these laws :)
This is the question I'd love to see asked to people running for President. Name something you think the States can do that the Federal government is prohibited from doing.
The answer isn't something we should accept as an opinion, though. For example, laws prohibit the federal government from (direct) involvement in elections.
Missed in the previous discussion: methanol is irrelevant. Grain based ferments have essentially zero methanol.(And methanol risk is a function of its concentration relative to ethanol — the treatment for methanol poisoning is… ethanol!) even fruit based fermentations with significantly higher pectin concentrations only produce trace methanol, and it’s not all that well concentrated in a distillation due to azeotropes (which also says that throwing out the heads doesn’t help that much).
Methanol poisoning stories in the news almost exclusively result from people trying to sell denatured or industrial alcohol. The biggest risk in home distilling is fire.
> the treatment for methanol poisoning is… ethanol!
My grandpa drank a shot of schnapps every night and called it his medicine. I thought it was a euphemism but apparently he was actually taking an antidote prophylactically. You can't be too careful. He never once got methanol poisoning.
> Methanol poisoning stories in the news almost exclusively result from people trying to sell denatured or industrial alcohol
Pretty sure this was a relic of prohibition right? The feds would contaminate ethanol with methanol to keep people from drinking it, but then they hurt a bunch of people and never faced any consequences...
> Pretty sure this was a relic of prohibition right? The feds would contaminate ethanol with methanol to keep people from drinking it
We still do this now. We don't do it because alcohol is illegal, we do it because we levy higher taxes on non-poisonous alcohol, and if someone decides to drink the poisoned alcohol, they deserve what they get.
> the treatment for methanol poisoning is… ethanol!
I looked this up, it is directionally correct but if you are in a hospital setting they have better options https://www.ncbi.nlm.nih.gov/books/NBK482121/
As someone living in the Balkans, home brewing is a national passtime for every nation around. When every family has its own recipe for brewing alcohol, killing ourselves would've been achieved many centuries ago if it was a real concern. Methanol is an issue when some dumbshit decides to cell chemically produced trash on industrial scale instead of buying the expensive ingredients.
almost every year there is a news story of some Western tourist visiting another country dying from bootleg methanol alcohol
As I said, this happens when someone tries to sell illegally produced trash created not by brewing but with sugar, chemical essence, and whatever they've mistaken for ethanol. The tax on alcohol creates a black market and some people taking part in it are either dumb or lazy and those are the cases you hear about.
Raised and addressed in an earlier post on an earlier article on HN https://news.ycombinator.com/item?id=47736298#47737600
Was it missed or intentionally downplayed/ignored because people came into the discussion with priors that they were eager to maintain?
Seems like these sorts of "yes it could be unsafe in theory but the reality of physics and incentives make this mostly irrelevant" type things get missed far too often certain parts of the internet to be coincidence.
That said, the fact that it dropped on a weekend did it no favors the first time around.
Speaking as a brewer, I can tell you that tons of people who should know better actually believe the methanol thing and will even quote some sciency words to make their argument. I think its a case of bad information coming from black market distilling being propagated uncritically. People who know better (licensed distillers) have no incentive to argue against it.
Bought and rigged up a 'hand sanitizer plant' about five months into COVID. Populated the thing with thermocouples, load cells and automation with nodered on raspberry pi and a bunch of esp32s flashed with tasmota doing sensing and control. Everything talked over mqtt. Great little architecture and having it highly automated allowed me to focus on the parts that were less easily controlled for.
Dashboard: https://imgur.com/a/so7iZJX
Sanitizer run: https://imgur.com/a/iWDlNfb
Quite a lot of fun actually.
The best liquor I ever had was by a state police detective who had been home distilling since he was 12. It was made from rye and corn, but tasted like peaches.
I think it is kind of magical to witness the process. I only experimented a few times, and never aged it, so every was very sharp. The best was a sharp brandy made from a bottle of wine I bought. The worst was using a leftover keg of beer, which bittered the copper pipe, so everything after tasted like gin.
I would recommend people try it. You can make one out of copper pipe from a hardware store, a few fittings and a pressure cooker. Be safe, of course, and remember that ethanol is used as a preventative for methanol poisoning :)
The best I’ve ever done was a double distilled Spanish box wine we picked up for 1eur/l. The wine was undrinkable, but the brandy was sooooo smooth.
Next best was cheap tokaij furmint, distilled once and then mixed back into some of the undistilled wine. Basically the same thing as pineau de charante, but Hungarian and on the kitchen table.
To me, the refractive index of hot ethanol makes it sparkle like a diamond when leaving the still.
I don't drink anymore, but man I loved distilling. It's like magic.
Reposting my comment from the last thread:
For those wondering, the opinion[0] doesn't address the Commerce Clause power (and Wickard and Raich) becaue the government abandoned that argument. See footnote 5.
The Commerce Clause issue is raised in our other case[1] that's now pending before the Sixth Circuit.
(I argued both cases.)
[0] https://www.ca5.uscourts.gov/opinions/pub/24/24-10760-CV0.pd...
[1] https://www.buckeyeinstitute.org/issues/detail/ream-v-us-dep...
It's been way too long since I've taken a political science course, but does this mean that the ban is struck down for the entire country, or just the area that the 5th Court of Appeals covers?
The ruling only has binding precedent in the 5th Circuit, other circuits aren't bound to follow it. Formerly this kind of ruling would come with a nationwide injunction to force the issue but now that those are severely curtailed by the Supreme Court it's only binding to the courts under the jurisdiction of the 5th circuit.
Decisions in other circuits can be very persuasive to other circuits but they're not required to agree the same way a Supreme Court ruling is binding. Circuit splits are moderately common and usually trigger a review by the supreme court if an appeal wasn't filed for the earlier decisions.
Nationwide injunctions are a very recent legal innovation -- as in, extremely rare until the 2000s, and uncommon until the 2010s.
They were not how this situation was handled for nearly all of the existence of the United States.
Seems like a perfectly valid one. If the government is violating the constitution or a persons rights why should there be suits all across the country to get that recognized? Especially when the question isn't on something with a lot of particularized tests that's sensitive to the exact case, eg 4th amendment law? Why should rights be so dependent on someone in my particular part of the country having sued?
Only the 5th court of appeals. However if you get caught elsewhere your lawyer will have a good appeal grounds just because your area will need to decide if they agree. If all areas eventually agree it probably never will get to the supreme court. Once several different courts hear this and make a decision if they disagree the supreme court jumps in reading all the logic of everyone below them to try to find a real answer. (It doesn't always work this way, that is the textbook ideal way, but the real world is often different).
Note that unless you think nothing of spending 20 million dollars on lawyers this is probably not something that you want to fight.
Appeals court decisions generally only apply to their own jurisdiction. But they obviously hold a lot of weight when cited in others.
Prior to this year, the entire country. Today, thanks to SCOTUS shenanigans, it likely only applies to the states involved in the lawsuit, LA. But who knows, hard to keep up with the game of calvinball the SCOTUS is playing.
You seem to be confusing precedent-setting decisions with nationwide injunctions.
Probably though the old pattern was that the plaintiffs would request and the Circuit would issue a nationwide injunction with the ruling when finding that a law in full unconstitutional.
Now we have the weird situation where the constitution is more patchwork because you have to get rulings in all the Circuits or wait for one case to make it all the way to the Supreme Court.
No, that was never the old pattern. Nationwide injunctions were unheard of until very recently -- as in, within the past 10-20 years.
Your own source says they've been common since 1960
It doesn’t say that. It says that the D.C Court of Appeals issued one in 1963, and then quotes the DOJ as saying “ nationwide injunctions remained ‘exceedingly rare’ for a few decades after 1963[,]” notwithstanding one issued by a district judge in New York in 1973.
Regardless of what you think about nationwide injunctions, your original assertion that “prior to this year,” a decision by a federal appellate court would apply the entire country is categorically false.
Previous discussion: https://news.ycombinator.com/item?id=47736298
Wasn’t great. Would love a second attempt focused on distilling not individualist v collectivist or immigration.
(Except for relevant connections around sharing your creations with neighbors and/or internationally inspired novel spirits.)
I am not really a fan of liquor, but I do like the idea of having skills which are universally valuable.
If you air dropped me into a random village in Africa I doubt I could 'code for cassava' but I could almost certainly make a living if I knew how to set up a basic pot still and safely create booze.
You could sanitize and disinfect with that alcohol! You could also make extracts of any plants nearby that were useful. Whiskey and vanilla beans are sufficient to make vanilla extract!
Sub saharan africa already has a very large informal distilling network (especially of bananas), a niche largely reserved for women in many regions (not sure for what the reason is for that exactly).
Probably because it involves some form of cooking, which is a feminine-coded skill.
Might as well plug this recent Criminal Podcast episode: https://thisiscriminal.com/episode-358-the-formula-3-27-2026
TLDL: During prohibition, US government required adding 5% methanol to industrial alcohol, hoping that this would stop bootleggers from selling it as liquor. It was sold anyway, resulting in many deaths.
To be fair, we still add 5-10% methanol to industrial alcohol. But also a bunch of bitterants to discourage use.
Are adding it or just distill both because it's cheaper?
Adding. That majority of things we ferment and distill will not produce anywhere close to 5-10% methanol.
To make it poisonous enough that the tax men leave you alone.
So cheaper in a circuitous way.
As I understand it, this only applies to the three states in that district, all of which also have statewide bans against it.
My state (Missouri) has the most lax home distilling state laws in the nation, which allow residents to produce up to 500 bottles per year. Well, at least theoretically, since the federal ban takes precedence.
I had no idea this was even a law!!! Where do I turn myself in?
The post '86 machine gun ban relies on basically the exact principle overturned here.
Yes, it'd be interesting if this gets appealed and the SC gets to take a look at if $0 tax stamps are allowable under the tax and spending clause.
Yeah, moonshine is ok but Tommy Gun isn’t? It’s roaring twenties y’all!
Have a beer for that news!
It'll be interesting to see how many people get methanol poisoning from trying their hand at it without doing the research properly. That being said, so long as it's for private or non-profit use, I don't really see the harm here.
>It'll be interesting to see how many people get methanol poisoning from trying their hand at it without doing the research properly.
If you're into home brewing or distilling, the first and only comment people completely unfamiliar with the process say is something about going blind because of methanol. It's disappointing because the process is so rich with history and really interesting problems to solve but the zeitgeist is completely poisoned by prohibition-era propaganda.
Unless they try to make booze from woodchips, they'll be fine. Using fruit or grains or potatoes makes it really hard to end up with enough methanol to be dangerous.
I dunno, I tried making some myself when I was quite young and I can still see. Don't know what I did wrong / right...
how...uh...explosive...are home stills?
They're a significant fire hazard which is why ATF regulations for stills require them to be located at least 100 feet from a residence.
I live in a city with 2 distilleries. You can smell when they're dealing with the mash because everyone in town can smell it. Also, we all get some black mold (not the really bad one) all over our siding which I think is some byproduct of the fermentation step.
My father worked in the oil business. As a chemical engineer, he was brewing his own moonshine (Poitín [pronounced 'poh-cheen'] in Ireland, Sidiki [means 'friend'] in Arabic language countries) since he was in university. In Saudi Arabia, there were frequent home fires in the western-expatriate communities. Newspapers reported them as "unattended cooking pot" fires. It happened several times per year in the Ras Tanura community they last lived in.
Crikey. My dad (and just about every other westerner) used to brew sid down the road in Dhahran, I never heard of fires from it.
Thanks for sharing your comment. I was skeptical about your claim that black mold would be a consequence of living near a distillery, but in fact, it is. It is called Whiskey Fungus and is related to the aging of the spirits.
Yep, that's it. They all look the same with a human eyeball. Or I need better eye glasses.
> The fungus can be removed from buildings using high pressure water jets, bleach, etc. According to a report from the Kentucky government, it has not been shown to cause anything other than cosmetic effects thanks to its mode of nutrition via the carboniferous atmosphere, rather than the decay of building materials in general.
It reaches higher up the siding than I can reach with household cleaners. It makes the house look dirty. Which I really don't care about, since most folks in the neighborhood have the same schmutz on their homes. It doesn't seem to like cement, so sidewalks & foundations aren't affected (that I can see).
I would say: not explosive. I've seen a decent number of setups, and I can think of three areas where you could be concerned with safety (not necessarily where you should be):
1. Most use propane burners (the exact thing you'd use for homebrewing which is already legal and safe, and also similar to what some large turkey fryers use) which can be risky, but some are electric (120v or 240v).
2. Stills are an open system insofar as there is a way for pressure to escape - if you're goofing things up, you might vaporize and not recondense your ethanol (eg, because you have the heat way too high and/or aren't doing a good job of cooling down the vapors), and it's possible for that vapor to start on fire. I've seen it happen, and it's certainly a spectacle but wasn't particularly dangerous.
3. The distillate itself (ie, ethanol) is usually pretty potent, especially the foreshots and heads. Let's say 70%+. Especially as it's coming out, it's still prone to evaporation, and you could have a combustible/explosive risk here, but I've never seen this to be an actual problem.
Not explosive, but still a potential fire hazard, especially if a still gets way too hot (coolant system fails) and alcohol vapors escape. The risk becomes extremely minimal when using an electric still.
they're really not. they're generally not a pressure vessel, and even when I've had leaks of ethanol, the fire went out immediately after being removed from heat.
today's home stills are usually plug-in resistance heated chambers with a still head, and are very high quality. my flame-out was from a pot still that was sealed with flour and water, not a modern still.
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Big beer head Kavanaugh and Kegseth are probably jumping for joy.
A win against the over-application of the interstate commerce clause that benefits everybody! Quick, how can we make this partisan?