February 23, 2024 – USA Today recently published an article containing a list of federal firearm licensees (“FFLs”) that are part of the ATF’s “Demand 2” Program. In order to be placed on the Demand 2 List, an FFL must have sold at least 25 firearms that were traced within three years from when they were sold over the course of the preceding year. Although the Demand 2 List is generally not available to the public, it was released pursuant to a FOIA request. According to USA Today, the Demand 2 List shows that “the vast majority of guns used in crimes are sold by a small fraction of America’s gun shops.”

However, ATF representatives have expressly stated that being on the Demand 2 List itself is not an indication of any wrongdoing by the FFL. According to ATF spokeswoman Kristina Mastropasqua, “A number of factors, including geography, sales volume, secondary market transfers by an original lawful purchaser, and the level of sophistication of firearm traffickers, may be involved in a traced crime gun.” Notably, the Demand 2 List includes approximately 1,300 FFLs spread out among 46 states, with a large population located along the east coast. The only states without any FFLs on the list are Hawaii, New Jersey, New York, and Wyoming. There are also plenty of FFLs on the Demand 2 List that are found in states like California, Maryland, and Illinois where there are already onerous restrictions on retail sales of firearms that are supposed to prevent straw purchases or gun trafficking.

Despite these factors, legal counsel for the Brady Center have claimed that being on the Demand 2 List is “notice that for whatever reason, you are being targeted by traffickers,” and the USA Today article misleading claims that “[a] short period is an indicator of the illegal trafficking of guns.”

Not every firearm that is traced by the ATF has been used in a crime. For example, according to ATF firearms trace data for California in 2021, one of the most common reasons for a trace was the vague category of “weapon offense,” while other traces were for “found firearm,” “carrying concealed,” and “firearm under investigation.” None of these reasons indicate that the firearm traced was trafficked or used to commit a crime. These categories made up more than a third of the traces in California in 2021. Traces, by themselves, are not evidence of any wrongdoing on the part of the FFL who originally sold the firearm. Some FFLs who appeared on the list have reasoned that the law of averages basically dictates that any gun shop that sells more than 2,000 handguns a year is almost guaranteed to be included in the Demand 2 List.

Firearm industry members have expressed no issues working with the ATF to trace firearms used in crimes. For example, the National Shooting Sports Foundation’s longtime “Don’t Lie for the Other Guy” campaign is an effective program to prevent straw purchasing, and provides training for industry members in best practices. However, publicizing the Demand 2 List may be misleading. Gun control advocates will likely use the information to promote the misconception that being included on the Demand 2 List automatically indicates that the FFL in question is selling firearms to criminals.

Renzulli Law Firm, LLP will continue to monitor firearm-related news and events around the country.  If you have any questions concerning firearms related legislation, please contact JohnF. Renzulli or ChristopherRenzulli.