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SJC-12607

COMMONWEALTH vs. BRIAN K. HARRIS.

Middlesex. November 5, 2018. - March 29, 2019.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, 

JJ.

Firearms. License. Constitutional Law, Right to bear arms, 

Right to travel. Practice, Criminal, Instructions to jury, 

Conduct of prosecutor.

Complaint received and sworn to in the Lowell Division of 

the District Court Department on May 1, 2017.

A motion to dismiss was heard by Barbara Savitt Pearson, 

J., and the cases were tried before James W. Coffey, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Christopher DeMayo for the defendant.

Ashlee R. Mastrangelo, Assistant District Attorney (Melissa 

Weisgold Johnsen, Assistant District Attorney, also present) for 

the Commonwealth.

Maura Healey, Attorney General, & Thomas E. Bocian, 

Assistant Attorney General, for the Attorney General, amicus 

curiae, submitted a brief.

GAZIANO, J. This case concerns challenges to the firearms 
2

licensing statute by the defendant, a firearm owner licensed to 

carry firearms in New Hampshire, who moved to the Commonwealth

and did not obtain a Massachusetts firearm license within the 

sixty-day statutory time period for new residents.

Upon his return from a brief visit to New Hampshire, the 

defendant, who was intoxicated, got into a confrontation with 

his girlfriend in the early morning hours of September 12, 2015; 

she fled the apartment and called police. Officers returned 

with her to the apartment and spoke with the defendant, who 

agreed that he owned a Glock 43 pistol, and told them that it 

was in the trunk of his vehicle. Officers retrieved the weapon 

for "safekeeping" and kept the defendant overnight at the police 

station for his own safety after they determined he was too 

intoxicated to drive.

The defendant was not arrested, but two criminal complaints 

subsequently issued from the District Court charging him with 

unlawful possession of a firearm in violation of G. L. c. 269, 

§ 10 (h) (1); unlawful possession of ammunition in violation of 

G. L. c. 269, § 10 (h) (1); and unlawful possession of a firearm 

in violation of G. L. c. 269, § 10 (a).1 A District Court jury 

 

1 Initially, the defendant also was charged with unlawful 

possession of a large capacity weapon or large capacity feeding 

device, in violation of G. L. c. 269, § 10 (m). The 

Commonwealth did not proceed to trial on that charge. In 

addition, the Commonwealth entered nolle prosequi with respect 

to the charge of unlawful possession of a firearm in violation 
3

convicted the defendant on all charges. He appealed, and we 

allowed his application for direct appellate review.

The defendant challenges the denial of his motion to 

dismiss the complaint charging unlawful possession of a firearm 

in violation of G. L. c. 269, § 10 (a), on constitutional 

grounds.2 In the alternative, he requests a new trial on the 

grounds of asserted errors in the jury instructions and 

purported prejudice as a result of assertedly improper 

questioning of a witness by the prosecutor. We affirm.3

Discussion. 1. Motion to dismiss. a. Factual 

background. The limited facts before the judge were drawn 

predominantly from a police report submitted as an exhibit to 

the defendant's motion to dismiss.

In January 2015, Patty4 and the defendant started dating. 

At the time, Patty was living in an apartment in Tewksbury. In 

late May 2015, the defendant moved into Patty's apartment.

 

of G. L. c. 269, § 10 (h) (1). The conviction of unlawful 

possession of ammunition in violation of G. L. c. 269, 

§ 10 (h) (1), was placed on file, and the defendant was 

sentenced to the mandatory minimum sentence of eighteen months'

incarceration for unlawful possession of a firearm in violation 

of G. L. c. 269, § 10 (a).

2 The defendant did not appeal from his other convictions.

3 We acknowledge the amicus brief submitted by the Attorney 

General.

4 A pseudonym.
4

On June 4, 2015, Patty and the defendant removed some of 

her belongings from the apartment to make room for the 

defendant's belongings. That night, the defendant woke Patty by 

yelling. He pushed her across the room and pinned her to a 

wall. The defendant had found a photograph of Patty's former 

boyfriend. The defendant said that he would "mutilate" the 

former boyfriend "in front of [Patty] . . . or worse." He also 

said that he would "assassinate anyone [he] want[ed] anytime 

[he] want[ed]," and told Patty that he was "the most brutal 

person [she] will meet." The defendant counted rounds of 

ammunition and identified jackets he would wear at his victims' 

funerals.

On September 11, 2015, the defendant and Patty were in the 

Tewksbury apartment. They had a verbal argument about Patty's

work schedule, during which the defendant was verbally abusive. 

He went to the bedroom closet, where he retrieved a weapon that 

Patty identified as his "Glock." There was no indication that 

the firearm was loaded, but Patty also saw ammunition.

The defendant removed articles of his clothing from the

closet; packed them, with the Glock, in a backpack; and left the 

apartment. The defendant planned to "stay in New Hampshire for 

the night." The defendant did not end up staying in New 

Hampshire. Rather, at approximately 1 A.M. on September 12, 

2015, "after drinking," he came home to Tewksbury. He was 
5

intoxicated. Patty was asleep and did not hear the defendant

enter the apartment.

The defendant "threw on the lights and pulled the blankets 

off" Patty. He became enraged when she told him that "he was 

drunk" and that she "wanted nothing to do with him in [that] 

state." He began throwing items around and "trashing the 

apartment," while yelling at Patty and using obscene language.

Thinking about the Glock and the defendant's earlier 

actions, Patty became fearful for her safety. In an attempt to 

calm the defendant, Patty called his father, but this resulted 

in the defendant becoming yet more enraged. Patty grabbed her 

dog and keys, and called police as she fled the apartment; the 

defendant ran after her. After Patty got into her vehicle, the 

defendant "banged on" its exterior. Patty drove to a 

prearranged location, where she waited for the police.

At approximately 1:30 A.M., multiple uniformed officers 

responded in marked cruisers. Patty informed them that she was 

unsure if the defendant "had the Glock in [his] vehicle or in 

his possession," and consented to a protective sweep of the

apartment.

The officers formed a contact team and entered the 

apartment building. An officer used a cellular telephone to 

call the defendant, and requested that he step outside. The 

defendant complied. He said that he "had gone out drinking" 
6

before "coming home" to Tewksbury. He also acknowledged that he 

did not have a Massachusetts firearm license. Instead, he 

produced a New Hampshire firearm license. The defendant said 

that he had a Glock 43 (a nine millimeter pistol) in the trunk 

of his vehicle. He consented to a search of the vehicle, during 

which officers located the firearm and ammunition.

At the scene, Patty requested an emergency protection order 

under G. L. c. 209A. A judge issued the order, which was served 

on the defendant. Pursuant to the order, officers confiscated 

the defendant's firearm and ammunition for safe keeping. While 

they were doing so, the defendant commented that he "had 

connections" and would regain possession of the Glock. He also 

said that the protection order "won't stick." The defendant was 

not arrested. Rather, he was placed in protective custody when, 

after he failed multiple sobriety tests, officers determined 

that he would be unable to drive safely from the scene.

As a result of the restraining order, the Atkinson, New 

Hampshire, police chief revoked the defendant's New Hampshire 

firearm license.

Criminal complaints against the defendant ultimately were

filed; he moved to dismiss the complaints. At a hearing on the 

motion, the defendant asserted an affirmative defense predicated 

on his by-then-revoked New Hampshire firearm license. In 

addition, he maintained that he was a New Hampshire resident who 
7

had been traveling "in or through the Commonwealth" at the time 

of the domestic dispute. The judge noted, however, that the 

defendant's residency status was a disputed issue of fact that 

could not be decided on a motion to dismiss. The judge denied 

the defendant's motion and found probable cause to believe the 

defendant was a resident of the Commonwealth and had been living 

with Patty in Tewksbury while unlawfully possessing a firearm. 

We discern no error in the judge's decision.

b. Massachusetts firearm license. In his motion to 

dismiss, the defendant raised both facial and as-applied 

challenges to the constitutionality of G. L. c. 269, § 10 (a). 

On appeal, he pursues only a facial challenge, and that only 

summarily.5

"A facial challenge is an attack on a statute itself as 

opposed to a particular application." Los Angeles v. Patel, 135 

S. Ct. 2443, 2449 (2015). "Facial challenges are disfavored"

 

5 Often, as here, those who do not apply for a Massachusetts 

firearm license are not entitled to assert as-applied challenges 

to the licensing laws because they cannot demonstrate that they 

sought, and were denied, a Massachusetts firearm license. See 

Commonwealth v. Johnson, 461 Mass. 44, 58 (2011). The defendant 

gave no indication that he had applied for a Massachusetts 

firearm license. Nor has he argued that applying for a license 

would have been futile. See Hamilton v. Pallozzi, 848 F.3d 614, 

620-621 (4th Cir.), cert. denied, 138 S. Ct. 500 (2017). 

Therefore, he would not have been able to proceed on an asapplied challenge. See Commonwealth v. Cassidy, 479 Mass. 527, 

539 n.10, cert. denied, 139 S. Ct. 276 (2018); Commonwealth v. 

Allen, 474 Mass. 162, 174 (2016); Commonwealth v. Powell, 459 

Mass. 572, 590 (2011), cert. denied, 565 U.S. 1262 (2012).
8

because they "run contrary to the fundamental principle of 

judicial restraint" and "threaten to short circuit the 

democratic process by preventing laws embodying the will of the 

people from being implemented in a manner consistent with the 

Constitution" (citation omitted). See Washington State Grange

v. Washington State Republican Party, 552 U.S. 442, 450-451 

(2008). See also Hightower v. Boston, 693 F.3d 61, 76-77 (1st 

Cir. 2012). A facial challenge fails when the statute at issue 

has a "plainly legitimate sweep" (citation omitted). Washington 

State Grange, supra at 449.

General Laws c. 269, § 10 (a), provides for punishment of 

any individual who, "except as provided or exempted by statute,

knowingly has in his possession; or knowingly has under his 

control in a vehicle; a firearm, loaded or unloaded."

The statute defines a number of categories of persons who 

are "exempted by statute" from punishment under G. L. c. 269, 

§ 10 (a). Exemptions apply to new residents of the 

Commonwealth, see G. L. c. 140, § 129C (j); holders of a 

Massachusetts firearm license, see G. L. c. 140, §§ 131 (a),

(b), 131F; holders of certain firearm licenses issued by other 

jurisdictions, see G. L. c. 140, §§ 129C (u), 131G; those with 

firearm identification (FID) cards who possess firearms in their 

residences or places of business, see G. L. c. 269, 

§ 10 (a) (1); G. L. c. 140, § 129C; and certain nonresidents 
9

traveling in or through the Commonwealth, see G. L. c. 140, 

§§ 129C (h), 131F, 131G. In addition, exemptions exist for 

specific types of firearms, certain persons, and specified uses.6

The defendant contends that the statutory exemption for an 

individual who possesses a Massachusetts firearm license, see

G. L. c. 140, §§ 131 (a), (b), 131F; G. L. c. 269, § 10 (a) (2), 

(3), on its face violates Federal due process protections and

rights under the Second Amendment to the United States 

Constitution, because, to invoke the exemption, a defendant must 

proffer evidence of a Massachusetts firearm license. The 

defendant argues that the initial burden of production as to a 

license, or lack thereof, should rest on the Commonwealth

because "lack of a license" is an element of G. L. c. 269, 

§ 10 (a), rather than an affirmative defense to the offense. On 

this basis, the defendant asks this court to reverse the denial 

of his motion to dismiss and, accordingly, his conviction under 

G. L. c. 269, § 10 (a).

This court previously has rejected similar arguments. We 

have long held that possession of a Massachusetts firearm 

license is an affirmative defense to G. L. c. 269, § 10 (a), and 

not an element of that offense. See Commonwealth v. Allen, 474 

Mass. 162, 174 (2016); Commonwealth v. Gouse, 461 Mass. 787, 

 

6 See G. L. c. 140, §§ 121, 129C (a)-(u), 131, 131F, 131G; 

G. L. c. 269, § 10 (a) (1)-(4).
10

803-805 (2012); Commonwealth v. Powell, 459 Mass. 572, 582

(2011), cert. denied, 565 U.S. 1262 (2012). Because it is an 

affirmative defense, a defendant has the initial burden of 

production as to possession of a Massachusetts firearm license. 

See Gouse, supra at 802. "If such evidence is presented, 

however, the burden is on the prosecution to persuade the trier 

of facts beyond a reasonable doubt that the defense does not 

exist" (citation omitted). Id. See G. L. c. 278, § 7.7 This 

system comports with due process, Commonwealth v. Jefferson, 461 

Mass. 821, 834-835 (2012), and the Second Amendment. See

Commonwealth v. Eberhart, 461 Mass. 809, 813 (2012); Gouse, 

supra at 801; Commonwealth v. Loadholt, 460 Mass. 723, 727 

(2011).

Moreover, the defendant's argument cannot redress his

grievance, i.e., the denial of his motion to dismiss. As noted, 

he argues that "the prosecution must prove non-licensure" as an 

element of G. L. c. 269, § 10 (a). It was undisputed, however, 

 

7 In relevant part, G. L. c. 278, § 7, states that "[a]

defendant in a criminal prosecution, relying for his 

justification upon a license . . . shall prove the same; and, 

until so proved, the presumption shall be that he is not so 

authorized." This court has said that "[a]lthough the language 

of § 7 suggests that the defendant must shoulder the entire 

burden of proof (i.e., the burden of production and the burden 

of persuasion) as discussed, we have interpreted it only to 

impose the burden of production on the defendant, maintaining 

the ultimate burden of disproving a properly raised affirmative 

defense on the prosecution." Commonwealth v. Gouse, 461 Mass. 

787, 807 (2012).
11

that the defendant lacked a Massachusetts firearm license. He 

told police that he did not have a Massachusetts firearm 

license, and agreed in his memorandum in support of his motion 

to dismiss, as well as at the hearing on that motion, that he

lacked such a license. In his appellate brief, the defendant

asserts that he "did not have a Massachusetts firearms license."

Therefore, even if licensure were an element of G. L. c. 269, 

§ 10 (a), there was no doubt that the defendant lacked a

Massachusetts firearm license. The judge did not err in denying 

the motion to dismiss.

c. Traveling in or through the Commonwealth. General Laws

c. 140, § 129C (h), establishes a statutory exemption that may 

be raised as an affirmative defense to an alleged violation of 

G. L. c. 269, § 10. See G. L. c. 269, § 10 (a) (4). Under

G. L. c. 140, § 129C (h), nonresidents may travel "in or through 

the commonwealth" while in "[p]ossession of rifles and shotguns 

and ammunition," provided that the "rifles or shotguns are 

unloaded and enclosed in a case."

In his memorandum in support of his motion to dismiss, and 

at the motion hearing, the defendant argued that he was a 

resident of New Hampshire who "fit[] precisely within the class 

of exempted persons . . . set forth" in G. L. c. 140, 

§ 129C (h). The judge determined, however, that there was no 

probable cause to believe that the defendant was traveling in or 
12

through the Commonwealth. Rather, she found probable cause to 

believe that the defendant was living in the Commonwealth with 

his girlfriend.8

On appeal, the defendant adopts a new and different 

argument. He contends that G. L. c. 269, § 10 (a), and G. L. 

c. 140, § 129C (h), are facially unconstitutional because, taken 

together, they violate the right to interstate travel, the right 

to equal protection, and rights guaranteed by the Second 

Amendment, as they prohibit a nonresident from traveling in or 

through the Commonwealth with a handgun, unless the nonresident

first obtains a Massachusetts firearm license. Therefore, the 

defendant argues, the judge erred in denying the motion to 

dismiss.

The defendant's arguments are unavailing. On appeal, he

does not explain how G. L. c. 269, § 10 (a), and G. L. c. 140, 

§ 129C (h), act together to prohibit nonresidents from traveling 

with handguns in or through the Commonwealth. As indicated, he 

provided no such explanation below. Nor does he address on 

appeal the language of G. L. c. 140, § 131G, under which a 

nonresident of Massachusetts, who is a resident of the United 

 

8 As discussed, G. L. c. 140, § 129C (h), exempts 

nonresidents who are traveling in or through the Commonwealth

with rifles and shotguns. There is no indication that the 

defendant ever possessed a rifle or a shotgun in the 

Commonwealth. Accordingly, G. L. c. 140, § 129C (h), is 

inapplicable to these facts.
13

States, and who possesses a firearm permit or license issued by 

a jurisdiction that prohibits licensure of felons and those 

convicted of certain narcotics offenses, "may carry a pistol or 

revolver in or through" Massachusetts for a number of purposes. 

In any event, because the defendant did not raise this argument 

below, it is waived. See Mass. R. Crim. P. 13 (a) (2), as 

appearing in 442 Mass. 1516 (2004). See also Commonwealth v. 

Alexis, 481 Mass. 91, 101 (2018); Commonwealth v. Bettencourt, 

447 Mass. 631, 633 (2006).

d. New Hampshire firearm license. The defendant argues 

that, at the time police took the Glock for "safekeeping," he 

possessed a valid New Hampshire firearm license that allowed him

to carry firearms in the Commonwealth notwithstanding any

Massachusetts firearms provisions. The United States Supreme 

Court has said, however, that the full faith and credit clause9

"does not compel a state to substitute the statutes of other 

states for its own statutes dealing with a subject matter 

concerning which it is competent to legislate" (quotation and 

citation omitted). Baker v. General Motors Corp., 522 U.S. 222, 

232 (1998). In our Federal system, "each state is permitted to 

 

9 Article IV, § 1, of the United States Constitution states, 

"Full Faith and Credit shall be given in each State to the 

public Acts, Records, and judicial Proceedings of every other 

State. And the Congress may by general Laws prescribe the 

Manner in which such Acts, Records and Proceedings shall be 

proved, and the Effect thereof."
14

create its own laws so long as they do not run afoul of the 

Constitution, federal laws, and treaties." Hamilton v. 

Pallozzi, 848 F.3d 614, 628 (4th Cir.), cert. denied, 138 S. Ct. 

500 (2017). See art. VI, cl. 2, of the United States 

Constitution.

At the time police discovered the defendant's firearm, a 

New Hampshire statute allowed a New Hampshire licensee to "carry 

a loaded pistol or revolver in [that] state."10 See N.H. Rev. 

Stat. Ann. § 159:6. Although the Commonwealth afforded 

exceptions to nonresidents who possessed certain firearm and 

hunting licenses issued by other jurisdictions, see G. L. 

c. 140, §§ 129C (f), 131G, and allowed nonresidents to obtain 

temporary firearm licenses, see G. L. c. 140, § 131F, no statute 

in the Commonwealth granted full reciprocity to holders of New 

Hampshire firearm licenses. Similarly, when New Hampshire's 

licensing requirement was in effect, the statute did not provide 

reciprocity to holders of Massachusetts firearm licenses. See

N.H. Rev. Stat. Ann. § 159:6-d.

The privilege to conceal and carry a loaded pistol or 

revolver that was conferred by New Hampshire's firearm licensing

 

10 In 2017, New Hampshire repealed its licensure 

requirement, see 2017 N.H. Laws § 1:1, effective Feb. 22, 2017; 

this allowed its residents to conceal and carry loaded pistols 

and revolvers in New Hampshire without a license. See N.H. Rev. 

Stat. Ann. § 159:6.III.
15

statute, N.H. Rev. Stat. Ann. § 159:6, is conferred in the 

Commonwealth through a "Class A" license, the issuance of which 

is subject to limitations for certain classes of persons, such 

as convicted felons, substance abusers, and the mentally ill.

See G. L. c. 140, § 131 (a), (d).11 See, e.g., Chief of Police 

of Worcester v. Holden, 470 Mass. 845, 853 (2015); Jefferson, 

461 Mass. at 830; Loadholt, 460 Mass. at 726 & n.6. A New 

Hampshire firearm license was available to any "suitable 

person." See N.H. Rev. Stat. Ann. § 159:6(I)(a).

Ultimately, this matter concerns different jurisdictions

making differing determinations about firearm licensing and 

regulation. See Hamilton, 848 F.3d at 628 & n.15. The 

Commonwealth is not required to substitute its statutes for 

those of New Hampshire. See Pacific Employers Ins. Co. v. 

Industrial Acc. Comm'n of Cal., 306 U.S. 493, 502 (1939) ("the 

conclusion is unavoidable that the full faith and credit clause 

does not require one state to substitute for its own statute, 

applicable to persons and events within it, the conflicting 

 

11 We note that Federal law contemplates similar 

restrictions on the possession and transport of firearms. See 

18 U.S.C. § 922(g) ("It shall be unlawful for" felons, 

fugitives, users or addicts of controlled substances, those with

mental illness, aliens, dishonorably discharged service members, 

those subject to protection orders, and those convicted of 

domestic violence to "possess" or "transport" interstate "any 

firearm or ammunition"). See also District of Columbia v. 

Heller, 554 U.S. 570, 626-627 (2008).
16

statute of another state").

The judge who denied the defendant's motion to dismiss 

found probable cause to believe that the defendant had been

living in Massachusetts when police became aware of his firearm.

The facts available indicated that, at that point, the defendant 

had been a resident of Massachusetts for several months.

Under Massachusetts requirements, a "new resident moving 

into the commonwealth, with respect to any firearm . . . then in 

his [or her] possession," may lawfully possess such firearms

"for [sixty] days," G. L. c. 140, § 129C (j), after which he or 

she must obtain a Massachusetts firearm license in order to 

possess the firearm outside the home or place of business.12 See

 

12 In Commonwealth v. Wood, 398 Mass. 135, 137 (1986), this 

court addressed whether G. L. c. 140, § 129C (j), served as an 

exemption to the version of G. L. c. 269, § 10 (a), that was 

then in effect. At that time, G. L. c. 269, § 10 (a), punished 

those who "carrie[d]" firearms, and G. L. c. 140, § 129C (j), 

exempted those who "possesse[d]" firearms. See Wood, supra; St. 

1990, c. 511, §§ 2, 3. Therefore, this court concluded that 

G. L. c. 140, § 129C (j), did not serve as an exemption to G. L. 

c. 269, § 10 (a). See Wood, supra. General Laws c. 269, 

§ 10 (a), was amended in 1990, however, to prohibit the unlawful 

"possession" of a firearm. See St. 1990, c. 511, §§ 2, 3. The 

purpose of the amendment was to "regulate the possession of 

firearms . . . for the immediate preservation of the public 

welfare." See St. 1990, c. 511. The amendment remains 

applicable today. See G. L. c. 269, § 10 (a). Therefore, G. L. 

c. 140, § 129C (j), which applies to the possession of firearms, 

now serves as an exemption to G. L. c. 269, § 10 (a), which 

prohibits the unlawful possession of firearms. See Commonwealth

v. Cornelius, 78 Mass. App. Ct. 413, 419 (2010) ("by satisfying 

the exception set out in G. L. c. 140, § 129C[j], new 

residents . . . satisfy the firearm exemption set out in G. L. 

c. 269, § 10[a][4], for a limited period of time, without also 
17

G. L. c. 140, § 131 (a), (b); G. L. c. 269, § 10 (a) (2). The 

defendant could have applied for a Massachusetts firearm license 

within the sixty-day period following his arrival in the 

Commonwealth, but during more than three months of residency, he 

chose not to do so. There was no error in the denial of the 

motion to dismiss.

2. New trial. In the alternative, the defendant seeks a 

new trial on the grounds of purportedly improper jury 

instructions13 and the prosecutor's questioning of one of the 

witnesses.

a. Jury instructions. The defendant argues that a new 

trial is required because the judge denied his request for an 

instruction on 18 U.S.C. § 926A, as well as because the judge 

assertedly did not instruct on G. L. c. 269, § 10 (a) (1). This 

latter instruction was not requested at trial, but in fact was 

 

complying with the provisions of G. L. c. 140, § 131G").

13 The defendant also contends that the Commonwealth 

"misconstrued" the firearm-licensing statute during closing 

argument by addressing a statutory exemption that was available 

to a nonresident "passing through [the Commonwealth] with his 

firearm." The defendant did not object at trial. Thus, we 

review for a substantial risk of a miscarriage of justice. See 

Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011). 

General Laws c. 140, §§ 131F and 131G, allow nonresidents of the 

Commonwealth to travel in or through Massachusetts with a pistol 

or revolver, provided several conditions are met. The judge 

instructed the jury as to both G. L. c. 140, §§ 131F and 131G. 

The Commonwealth's closing argument did not misconstrue the 

applicable statutory provisions. Therefore, the defendant's 

argument is without merit.
18

given by the judge. The defendant contends further that the 

instructions deprived him of an affirmative defense under G. L.

c. 140, § 129C (j), and potentially confused the jury. The 

defendant did not object to the instructions at trial.

We evaluate the instructions provided to a jury "as a 

whole, looking for the interpretation a reasonable juror would 

place on the judge's words," and not in a hypermechanical manner

(citation omitted). See Commonwealth v. Vargas, 475 Mass. 338, 

349 (2016).

i. Interstate transportation of firearms. Because the 

defendant requested an instruction with respect to

18 U.S.C. § 926A, and objected when the request was denied, we 

review for prejudicial error.14 See Commonwealth v. Okoro, 471 

Mass. 51, 67 (2015). Under that analysis, we determine, first, 

whether there was error and, if so, whether the error was 

prejudicial. See Commonwealth v. Cruz, 445 Mass. 589, 591 

(2005). An error is not prejudicial when we can say with 

confidence that it "did not influence the jury, or had but very 

slight effect" (citation omitted). Commonwealth v. Brown, 456 

Mass. 708, 725 (2010). On the other hand, if we are unable to

say "with fair assurance," and "after pondering all that 

 

14 The defendant argues also that 18 U.S.C. § 926A preempts 

the Massachusetts firearms statutes. As the judge properly 

denied the request for an instruction on 18 U.S.C. § 926A, we 

need not reach this issue. See 18 U.S.C. § 927.
19

happened without stripping the erroneous action from the whole, 

that the judgment was not substantially swayed by the error,"

then the error was prejudicial (citation omitted). See Allen, 

474 Mass. at 168.

Pursuant to 18 U.S.C. § 926A, any person who is not 

prohibited under Federal law from transporting, shipping, or 

receiving a firearm

"shall be entitled to transport a firearm for any 

lawful purpose from any place where he may lawfully 

possess and carry such firearm to any other place 

where he may lawfully possess and carry such firearm

if, during such transportation the firearm is 

unloaded, and neither the firearm nor any ammunition 

being transported is readily accessible or is directly 

accessible from the passenger compartment of such 

transporting vehicle."

The defendant maintains that 18 U.S.C. § 926A is applicable 

here because, at the time his firearm was discovered by 

Tewksbury police, he was a nonresident "in the midst of a trip" 

from Londonderry, New Hampshire, to Atkinson, New Hampshire, "by 

way of Tewksbury." The defendant points to no authority

supporting his interpretation of 18 U.S.C. § 926A, nor are we 

aware of any.

This provision consistently has been construed to "allow[] 

a person to transport a firearm and ammunition from one state 

through a second state to a third state, without regard to the 

second state's gun laws, provided that the traveler is licensed 

to carry a firearm in both the state of origin and the state of
20

destination and that the firearm is not readily accessible 

during the transportation." Revell v. Port Auth. of N.Y. & 

N.J., 598 F.3d 128, 132 (3d Cir. 2010), cert. denied, 562 U.S. 

1178 (2011). See 18 U.S.C. § 926A; Torraco v. Port Auth. of 

N.Y. & N.J., 615 F.3d 129, 132 (2d Cir. 2010) (18 U.S.C. § 926A

"allows individuals to transport firearms from one state in 

which they are legal, through another state in which they are 

illegal, to a third state in which they are legal, provided that 

several conditions are met"). See also Bieder v. United States, 

662 A.2d 185, 188-189 (D.C. 1995) (where possession of firearm 

is lawful in Virginia and New York, 18 U.S.C. § 926A warrants

instruction for defendant arrested in District of Columbia while 

driving from Virginia to New York).

We decline to depart from the accepted understanding of 

18 U.S.C. § 926A. Therefore, we consider whether an instruction 

concerning that statute was warranted given the facts at trial. 

From the time he moved to Tewksbury in late May 2015, until 

September 12, 2015, the defendant possessed at least one handgun 

in the Tewksbury apartment. As a new resident of the 

Commonwealth, he was afforded sixty days in which to obtain a 

Massachusetts FID card or firearm license. See G. L. c. 140, 

§ 129C (j); G. L. c. 269, § 10 (a) (4). There is no indication 

that the defendant did so, or attempted to do so, during this 

period.
21

On September 11, 2015, the defendant placed a handgun in a 

backpack and transported it from Tewksbury to a shooting range 

in New Hampshire. He spent several hours at the range, and 

thereafter "had a couple beers." After several hours of 

drinking beer, the defendant drove to Londonderry, New 

Hampshire, to deposit multiple firearms in a storage unit. He

then drove to Manchester, New Hampshire, where he dropped off a

friend. He returned to Tewksbury between 11:30 P.M. on 

September 11 and 1 A.M. on September 12. Officers responded to 

the scene at approximately 1:30 A.M. on September 12 and later

discovered the Glock in the trunk of the defendant's vehicle.

In sum, on the evening of September 11, 2015, the defendant

began his journey in the Commonwealth, he sojourned in New 

Hampshire, and he returned to Massachusetts sometime late in the 

evening on September 11 or in the early morning hours of 

September 12. He did not transport a firearm "from one state 

through a second state to a third state." Revell, 598 F.3d at 

132. See Torraco, 615 F.3d at 132. Moreover, because he had 

not obtained a Massachusetts FID card or firearm license within 

sixty days of moving to the Commonwealth, he was unable lawfully 

to possess firearms in the Commonwealth, and therefore was 

unable to transport firearms lawfully into or from the 

Commonwealth pursuant to 18 U.S.C. § 926A. See Torraco, supra

at 138 (because petitioners "began the pertinent legs of their 
22

travels in New Jersey," under 18 U.S.C. § 926A, "possession and 

carriage of the firearms in that state needed to be lawful" in 

order for that statute to apply).

There was no error in the trial judge's decision that an

instruction concerning the provisions of 18 U.S.C. § 926A was 

not warranted.

ii. Residence or place of business. The defendant argues

for the first time on appeal that the judge erred in not 

instructing the jury to consider whether he had possessed the 

firearm outside his residence or place of business. The 

defendant did not request the instruction at trial, nor did he

object. Therefore, we must determine whether there was a 

substantial risk of a miscarriage of justice. See Jefferson, 

461 Mass. at 836. We conclude there was not.

General Laws c. 269, § 10 (a) (1), establishes a statutory 

exemption that allows an individual who has a Massachusetts FID 

card lawfully to possess a firearm in his or her residence or 

place of business. See Powell, 459 Mass. at 587-588 ("FID card 

allows the holder to own or possess a firearm within the 

holder's residence or place of business"). See also

Commonwealth v. McGowan, 464 Mass. 232, 240-241 (2013). Thus, 

G. L. c. 269, § 10 (a) (1), is an affirmative defense. See, 

e.g., Commonwealth v. Anderson, 445 Mass. 195, 214 (2005).

Although the defendant did not raise this defense, the judge, as 
23

was proper, nonetheless instructed the jury that G. L. c. 269, 

§ 10 (a) (1), "exempts a defendant . . . who was present in or 

on his or her residence or place of business." The defendant is 

mistaken in his argument before this court that the judge did

not instruct on this exemption.

In any event, the firearm was recovered from the 

defendant's vehicle, and, at trial, he argued consistently that 

he had no residence or place of business in the Commonwealth. 

The defendant, therefore, provided little basis for the judge to 

have instructed on G. L. c. 269, § 10 (a) (1). Moreover, there 

was no indication that the defendant had applied for or obtained 

an FID card. Absent such a card, the defendant could not have 

been acquitted under G. L. c. 269, § 10 (a) (1). He suffered no

prejudice.

iii. Sixty-day grace period and temporary licenses. The 

defendant argues that the jury instruction with respect to G. L. 

c. 140, § 129C (j), deprived him of a "potential" defense under 

that provision. In addition, he argues that a portion of the 

instruction might have confused the jury concerning temporary 

Massachusetts firearm licenses that are issued under G. L. 

c. 140, § 131F. Because the defendant did not object at trial, 

we review for a substantial risk of a miscarriage of justice.

See Jefferson, 461 Mass. at 836.

Because the defendant did not have a Massachusetts firearm 
24

license, the central issue at trial was whether he was living in 

Massachusetts on September 12, 2015, and, if so, for how long 

prior to that date. The Commonwealth's theory was that the 

defendant lived in Massachusetts from late May 2015 through 

September 12, 2015, a period of more than sixty days. The 

defendant maintained that he had never lived in Massachusetts.

A number of provisions of the Massachusetts firearm

licensing scheme create exceptions for new residents and 

nonresidents. The judge properly instructed the jury on them.

As discussed, for example, G. L. c. 140, § 129C (j), 

provides a sixty-day period during which a new resident of the 

Commonwealth who arrives in Massachusetts with firearms may 

possess those firearms without a Massachusetts FID card or 

firearm license. See G. L. c. 269, § 10 (a) (4). In his

charge, the judge explained that G. L. c. 140, § 129C (j), 

exempted any "new resident moving into the Commonwealth with 

respect to a firearm, rifle, shotgun, or ammunition then in his 

possession for [sixty] days after" moving to "the Commonwealth."

Because G. L. c. 269 does not define the term "resident,"

the judge instructed that a defendant "can only have one 

domicile under the law," but "can have lots of residences[,] so 

we use the [term] residence in its common everyday meaning and 

understanding that a person may have more than one residence at 

any one given time." The judge instructed further that, for the 
25

purposes of G. L. c. 140, § 129C (j), the Commonwealth had the 

burden of proving beyond a reasonable doubt that the defendant 

had been a Massachusetts resident.

While the defendant did not request an instruction on G. L. 

c. 140, § 129C (j), the evidence suggested that he was a new 

resident of the Commonwealth. Accordingly, the judge properly 

instructed the jury on that provision. See Commonwealth v. 

Gonzalez, 465 Mass. 672, 682 (2013). Relying on these 

instructions, had the jury found that the defendant was a 

resident of the Commonwealth on September 12, 2015, but that he 

had resided in Massachusetts for fewer than sixty days, they 

would have been required to acquit him.

In addition, the judge instructed that a nonresident who 

obtains a Massachusetts temporary firearm license pursuant to 

G. L. c. 140, § 131F, lawfully may carry firearms in the 

Commonwealth for specific purposes. The judge also explained

that, under G. L. c. 140, § 131G, a nonresident without a 

Massachusetts firearm license may carry

"a pistol or revolver in or through the Commonwealth 

for the purpose of taking part in a pistol or revolver 

competition or attending any meeting or exhibition of 

any organized group of firearm collectors or for the 

purpose of hunting provided that such person is a 

resident of the United States and has a permit or 

license to carry firearms issued under the laws of any 

state, district, or territory which has licensing 

requirements which prohibit the issuance of permits or 

licenses to persons who have been convicted of a 

felony or who have been convicted of unlawful use or 
26

possession or sale of narcotics or harmful drugs."

Given these instructions, had the jury found that the 

defendant was a nonresident when police discovered his firearm, 

and that he had acquired a temporary Massachusetts firearm 

license under G. L. c. 140, § 131F, or that he was traveling in 

or through Massachusetts to participate in a firearm 

competition, a firearm collectors' meeting or exhibition, or to 

hunt, they would have been obligated to acquit him.

In sum, the instructions encompassed exemptions under which 

the defendant could have been acquitted regardless of whether 

the jury found that he was a resident, as the Commonwealth

asserted, or a nonresident, as he maintained. The instructions 

accurately informed the jury of the elements of the offense, as 

well as the affirmative defenses. They did not deprive the 

defendant of an affirmative defense under G. L. c. 140, 

§ 129C (j), and were not likely to confuse the jury with respect 

to the exemption for nonresidents who possess Massachusetts 

temporary firearm licenses. See G. L. c. 140, § 131F. We 

conclude that the instructions did not create a substantial risk 

of a miscarriage of justice.

b. Asserted prosecutorial misconduct. The defendant 

contends that the Commonwealth caused him prejudice by asking 

Patty whether he "had something against Massachusetts." Because 

the defendant did not object, we review for a substantial risk 
27

of a miscarriage of justice. See Commonwealth v. Ferreira, 460 

Mass. 781, 788 (2011).

During cross-examination, defense counsel asked Patty

whether the defendant told "just about everybody that he had no 

intention of ever living in Massachusetts," to which Patty 

responded, "I can't answer that in a yes or no without 

explanation." On redirect, the Commonwealth probed the same 

issue; the prosecutor asked whether the defendant had told Patty

that he "never wanted to live in Massachusetts," but nonetheless 

had moved into the Tewksbury apartment with her. Patty answered 

in the affirmative. The prosecutor then clarified, "So he had 

something against Massachusetts . . . [b]ut he found himself 

here anyway?" To which Patty responded, "Correct."

Evidence "that otherwise may be inadmissible may become 

admissible where the defendant opens the door to its admission." 

Commonwealth v. Quinn, 469 Mass. 641, 732-733 (2014). Here, 

"defense counsel invited a fuller explanation" of Patty's 

testimony, see Commonwealth v. McCowen, 458 Mass. 461, 479 

(2010), and the prosecutor was permitted to respond. See id.

The defendant's dislike of Massachusetts was a cornerstone 

of his defense strategy. On direct examination of the 

defendant's uncle, counsel asked, "[H]as [the defendant] ever 

expressed any statement about living in Massachusetts?" The 

uncle responded, "He dislikes Massachusetts." Later, the 
28

defendant himself testified, "I'm not good with [Massachusetts]

gun laws. . . . I just don't like -- I don't like it down here 

basically." Given this, the question that the prosecutor posed 

to Patty did not create a substantial risk of a miscarriage of 

justice.

Judgment affirmed.