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I imagine there's a pretty high chance SCOTUS takes this next term?
Maybe? The Firearms Policy Coalition is pushing the case, and believe it to be their last best hope at an assault weapons ban case. There's more egregious statutes, but at most they're just more arbitrary.
But it's been at SCOTUS conference before, with pretty nakedly the same reasoning (albeit just pointing to Kolbe), and they just GVR'd it. And there's also the GVR in Range to point at, too. The court can just keep punting.
They biggest thing keeping the Supreme Court from taking this up is the fact that there's no realistic way for them to strike down an assault weapons ban, no matter how ridiculous and ad hoc, without jeopardizing existing Title II restrictions that no one but the most ardent gun advocates are looking to invalidate. At least not without imposing the kind of strained balancing test that conservatives tend to abhor and are constantly criticizing liberal justices for imposing. Alito's test doesn't help here — I don't know if there were any colonial-era firearms restrictions that are comparable but it's hard for me to imagine any that would clearly justify banning one kind of weapon that had yet to be invented but not another. And even if they can wriggle out of this then there's still nothing to stop states from imposing an FFL-style program of their own, after which the whole thing will end up back in court and the conservatives will again have to find some clear Second Amendment justification for why the Federal government can impose restrictions but the states can't.
One alternative is that they could create a standard that allows them to strike down the existing laws as arbitrary and capricious, but all that will do is cause the state legislatures to enact new laws that address whatever concerns the court brought up, which laws may address the arbitrary nature by being more restrictive. All this does is kick the can down the road, at which time they're forced to make a decision. The only time the court usually wades into these dilemmas is when a circuit split forces its hand, but that's unlikely here since any circuit that would strike down the restrictions doesn't contain any state that would enact them. I think it's high time that gun advocates realize that until we have a court that's willing to strike down any and all gun restrictions as unconstitutional, this is about as good as they're going to have it.
... from the dissent in the linked decision:
Wow, what Gordian Knot, such unsolvable. I won't pretend this closes every edge case -- there's a handful of super-rare and dumb guns that could be banned and probably shouldn't be, and even for Title II 'firearms' there are some things like silencers that are starting to creep up in popularity despite their onerous restrictions -- but it absolutely clears the question of machine guns versus assault weapons ban under any sane reading.
((The majority tries to glue the knot together by claiming there are 740,000 machine guns are registered with the ATF... which is a fascinating claim, and also absolutely useless trivia; less than 180k are pre-1986 guns that can possibly be owned by rando civilians, and of those not all are civie-owned or even functional.))
There are fair arguments whether this distinction is good as a matter of policy, whether it acts as an (undeserved) free pass for 1920-1990 bad laws, or where the exact line distinguishes between common and uncommon use, but it has historical support in both Founding- and 14th-Amendment-eras, and prohibits some of the most directly abusive and useless regulations.
This would be a more credible argument were the court not ready and quick to jump into quite a lot of other circumstances that fit all these criteria.
Does the vast number of illegally owned machined guns (glocks with "switches", mostly) matter at all here?
Not unless SCOTUS really wants them to: the Bruen/Miller/ series has repeatedly leapt back to the well of "in common use at the time for lawful purposes like self-defense", and it makes for a very easy line-drawing. Maybe if there were a large number of people taking glock switches out for a day on the range, or for lawful self-defense, or otherwise-legal competition shooting, but we're not really in or likely to be in that situation any time soon.
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As with the original Gordian Knot, they could just cut it. If you can declare a constitutional right to same sex marriage and thereby allow people of the same sex to get married to one another -- yes, even gay guys -- you can also declare that the right to keep and bear arms allows people to keep and bear arms -- yes, even machine guns. But the Court doesn't like that; it finds the idea of ordinary people just being able to buy and carry weapons to be beyond the pale, even if most of the conservatives think that's in the Constitution.
Yeah, if you're willing to deny the premise, it's not really a dilemma at all. Compared to McGirt or Bostock or Carpenter, overturning the complete ban on machine guns just wouldn't be anywhere near the same level of pragmatic impact. Machine guns just aren't that useful, even in criminal contexts, and that's in the infinitesimal chance that someone could bring a challenge against Title 2 background-checks-and-blue-glove as a category rather than just the post-86 ban on new registrations.
The problem's far more one for the political realms -- the press doesn't care about the distinction between deaths caused by a type of firearm versus those that could only be caused by a type of firearm, Whitehouse/Schumer will absolutely throw the red paint even if it wasn't a firearm specific to a SCOTUS ruling, and as you say, enough of the court doesn't care about even far more aggressive gun bans.
It's pretty frustrating to see a SCOTUS that considers the primacy of political realms, and even more so when it only happens certain political directions! But even assuming all those things, there are ways that SCOTUS could act within those constraints. That they don't says something far worse.
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If they do, this could be the perfect case to show off the next switch in time that saves nine. Thomas and Alito may suddenly find themselves without friends on the court.
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