On Jаnuary 30, 2009, after a jury-waived trial in the Central Division of the Boston Municipal Court Department, the defendant, Aaron Powell, 2 was convicted of possession of a firearm 3 without a firearm identification card (FID card), in violation of G. L. c. 269, § 10 (h); carrying a loaded firearm without a license, in violation of G. L. c. 269, § 10 (n); carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a); and *574 resisting arrest, in violation of G. L. c. 268, § 32B. 4 He appeals from the denial of his pretrial motion to suppress evidence, 5 contending that the firearm recovered was the result of an unlawful seizure of his person under art. 14 of the Massachusetts Declaration of Rights. 6 In addition, he contends that there was insufficient evidence to support his convictions of resisting arrest and unlawful possession of a firearm, and that his counsel furnished him with constitutionally ineffective representаtion by failing to file a motion to suppress a statement made by him. Last, the defendant challenges his firearm convictions under the Second Amendment to the United States Constitution. We transferred the case here on our own motion. We affirm the denial of the defendant’s motion to suppress and affirm his convictions.
1. Motion to suppress. Prior to trial, the defendant moved to suppress evidence, namely a firearm, that he claimed was the result of an unlawful seizure of his person under both the Fourth Amendment to the United States Constitution and art. 14. After an evidentiary hearing, the motion was denied.
In reviewing a decision on a motion to suppress, “we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions оf law.’ ”
Commonwealth
v.
Scott,
*575 On August 20, 2008, at approximately 11 p.m., Boston police Officer Manuel Bias and his partner, Scott Roby, were on routine patrol on Sonoma Street heading toward Maple Street in the Roxbury section of Boston. The officers were in an unmarked Ford Crown Victoria automobile with antennae on the back like those that appear on a marked police cruiser, and as such, are often recognized as an unmarked police cruiser. Officer Roby was driving; Officer Bias was seated in the front passenger seat. Both officers were dressed in plainclothes. Officer Bias wore a badge that identified him as a Boston pоlice officer on a chain around his neck. Officer Roby displayed a badge on his clothing. Officer Bias had responded to that area in the past for calls concerning “shots fired,” disturbances, and gun-related offenses.
As the officers approached the intersection, they observed about twenty-five people who were separated into three groups. There were both men and women, and they appeared mainly to be teenagers with a couple of individuals appearing to be in their early twenties. One group was comprised of about ten individuals who were standing in the vicinity of 87 Maple Street, which was to the officers’ right. The other two groups were across the street; one consisted of about five individuals аnd the other of approximately ten individuals.
Officer Roby was driving “very slowly.” The windows in the vehicle were down. The officers did not activate any lights or sirens, and did nothing to indicate that they were police. The officers heard yelling between the two groups and saw individuals pointing at each other. It appeared to Officer Bias that an altercation was brewing. While driving between the groups, however, it became “eerily quiet.” Officer Bias noticed one young man, the defendant, standing apart from the groups on the 87 Maple Street side of the street.
The defendant was not interacting with any other people, and looked away after he saw the officers. The defendant then walked on the sidewalk toward the officers and through the group сongregating at 87 Maple Street. As he started walking, the defendant’s right hand moved to his right hip, and his left hand moved to the center of his waist, as if he were grasping something which, based on Officer Bias’s experience and training, appeared to be a gun. Once the defendant got past the group, he started to run.
*576 Officer Bias got out of the vehicle and followed the defendant up Sonoma Street. He saw that the defendant was clutching something with his right hand on his right side, with his left hand positioned in the “center right of his waist.” The defendant ran to a driveway near a garage. Officer Bias observed that the defendant was holding the handle of what Officer Bias believed to be a gun. As he ran, the defendant, using his right hand, pulled out a firearm, a .22 caliber revolver. Officer Bias held a flashlight in his left hand and drew his gun with his right hand, pointing it at the defendant. Officer Bias twice yelled, “Drop it.”
The defendant turned left and ran to a fence along the driveway. As he tried to climb the fence, the defendant dropped the revolver to the ground. Unable to get over the fence, the defendant ran between the fence and a vehicle parked in the driveway in the rear area of the garage. Officer Bias lost sight of the defendant for a few seconds. The defendant emerged from the left side of the driveway, charging at Officer Bias with his hands clutched in fists. Officer Bias moved to his side, and the defendant ran into Officer Roby who had been trailing Officer Bias. The defendant knocked Officer Roby’s flashlight out of his hand. Officer Bias placed his gun in his holster and chased the defendant down Sonoma Street. Officer Bias eventually caught up with the defendant when he ran into two armed security guards who worked in the neighborhood. Officer Bias arrested the defendant. Officer Roby secured the revolver dropped by the defendant, which police soon determined to be loaded.
The motion judge made his findings and stated his conclusions orally. He first stated that Officer Bias “had a reasonable and articulable suspicion that the defendant was in possession of a weapon” based on Officer Bias’s training and experience, and based on the defendant’s actions. The judge concluded that no seizure of the defendant had occurred in the constitutional sense until Officer Bias told the defendant to drop his weapon. At that time, because the defendant had drawn a weapon on Officer Bias, there was “reasonable suspicion [that] became probable cause to arrest.” The judge went on to determine that the defendant abandoned his weapon when he tried to climb the fence, and that after its abandonment, the defendant did not retain any *577 expectation of privacy in the revolver. The judge denied the defendant’s motion to suppress.
On appeal, the defendant contends that his seizure was unsupported by reasonable suspicion under art. 14. See note 6,
supra.
In
Commonwealth
v.
Franklin,
We first must determine when the defendant was seized.
Commonwealth
v.
Narcisse,
“[W]e have held that the police may follow in a cruiser someone whom they observe engage in suspicious conduct to further their investigation, see Commonwealth v. Grandison,433 Mass. 135 , 138 (2001), and cases cited (following person in cruiser for surveillance purposes without use of blue lights, flashers, or sirens is not seizure), and that following a person, presumably at a rate of speed sufficient to keep him in sight, does not amount to a seizure absent some additional assertion of authority, by direct verbal communication (‘stop’) or otherwise (blocking, use of flashers). See Commonwealth v. Battle,365 Mass. 472 , 475 (1974) (when two persons ran into building in ‘apparent response’ to approaching police car, police ‘had the right — if not the duty — to conduct further visual investigation while the two persons remained in public view’). See *578 also Commonwealth v. Lopez, [451 Mass. 608 , 612 n.2 (2008)] (no seizure where police fоllowed defendant but did not issue any orders, block him from leaving, activate cruiser’s blue lights, or pursue him after he rebuffed request to talk).”
This case is similar to
Commonwealth
v.
Franklin, supra
at 819-823. In that case, the defendant’s flight was not prompted by anything the police did. When Officer Bias began following the defendant on foot, he had not exercised any show of authority or commanded the defendant to stop; and the officers had not blocked or impeded the defendant’s path. It was not until Officer Bias drew his weapon, pointed it at the defendant, and commanded the defendant to “[d]rop it,” that a seizure occurred.
8
Just before those actions, the defendant, who appeared to be a youth, had retrieved a firearm from his waist which was visible to Officer Bias, and which the defendant had previously сoncealed. While “the mere fact of carrying a weapon does not give rise to reasonable suspicion that the person is carrying it unlawfully (because many people register their weapons and carry them lawfully) ... the fact of concealment of the weapon . . . gives rise to such reasonable suspicion.”
Commonwealth
v.
Franklin, supra
at 823 n.3, and cases cited. Thus, at the time Officer Bias commanded the defendant to drop his weapon, Officer Bias, as the police in
Commonwealth
v.
Franklin, supra
at 823, had reasonable suspicion (and also probable cause) that the crime of illegally carrying a firearm had been committed. See
Commonwealth
v.
Sykes,
2.
Sufficiency of the evidence.
In determining the validity of a claim challenging the sufficiency of the Commonwealth’s
*579
evidence at trial, we review the evidence in the light most favorable to the Commonwealth to determine whether
“any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Commonwealth
v.
Latimore,
a. Resisting arrest. The defendant contends that the trial judge erred in denying his motion for a required finding on the charge of resisting arrest because there was insufficient evidence that (1) the defendant knew that the people chasing him were police; (2) the defendant was under arrest; and (3) the defendant’s conduct amounted to resisting arrest. We reject his contentions.
General Laws c. 268, § 32B (a), reads in pertinent part:
“A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.”
*580
The crime is committed at the time of the effecting of an arrest.
Commonwealth
v.
Grandison, supra
at 145. An arrest is effected whеre there is (1) “an actual or constructive seizure or detention of the person, [2] performed with the intention to effect an arrest and [3] so understood by the person detained.”
Id.,
quoting
Commonwealth
v.
Cook,
Contrary to the defendant’s assertion, there was sufficient evidence from which a rational trier of fact, here the trial judge, could have inferred that the defendant knew the two men following him were police officers. Officer Roby was wearing a Boston police badge around his neck on a medallion and a sweatshirt on which a Bоston police badge was imprinted and the words “Gang Unit” appeared on a sleeve. The unmarked cruiser that Officers Roby and Bias were driving was recognized in the community as being a vehicle commonly used by police. Because the three groups of people grew silent as the unmarked cruiser neared, it could be reasonably inferred that everyone knew (or at least suspected) that the men inside were police officers. The judge also could have reasonably concluded that the defendant’s actions of walking away and then breaking into a mn, after the unmarked cruiser passed and the defendant bore witness to the resulting silence, indicated that the defendant, too, understood that the men inside the vehicle wеre police. Further, Officer Bias’s act of drawing his firearm and ordering the defendant to drop his weapon constituted a classic police command, readily understood as such.
We also reject the defendant’s contention that there was insufficient evidence that the police wished to do anything other than stop him. In this case, the functional equivalent of a seizure, the first element of an arrest, see
Commonwealth
v.
Stoute,
There is no merit to the defendant’s argument that there was insufficient evidence that he “resisted” arrest because he was “simply running away,” and only made “contact” with Officer Roby because “Roby stepped in his path.” Here, there was evidence that the defendаnt “threatenfed] to use physical force or violence,” G. L. c. 268, § 32B, against Officer Bias when he charged out at him from the darkness of the left side of the driveway (the right side of the garage). The defendant then used “physical force,” G. L. c. 268, § 32B, against Officer Roby when he ran into him, knocked his hand, and hit his flashlight *582 out of his hand. There was sufficient evidence from which a rational trier of fact could conclude that the defendant’s conduct amounted to “resisting.”
b.
Possession of a firearm without a firearm identification card.
The defendant argues that the Commonwealth presented insufficient evidence of possession of an unlicensed firearm because there was no evidence that he lacked a firearms license. He contends that, consequently, his сonviction violates the due process clause of the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. We repeatedly have held that in prosecutions under G. L. c. 269, § 10 (a) and
(h),
the Commonwealth does not need to present evidence to show that the defendant did not have a license or FID card because the burden is on the defendant, under G. L. c. 278, § 7,
10
to come forward with such evidence.
Commonwealth
v.
Colon,
3. Ineffective assistance of trial counsel. At trial, Officer Bias testified that after handcuffing the defendant, he asked the defendant (without first giving Miranda warnings) why he ran and whether he had a license for the firearm. The defendant replied that he did not have a firearm. The defendant argues that his trial counsel was constitutionally ineffective in failing to file a motion to suppress the defendant’s statement in response to Officer Bias. The defendant contends that, had the statement not been in evidence, the Commonwealth could not have met its burden of proof on the licensing element on the charge of pos *583 session of a firearm without a FID card, and could not have proved consciousness of guilt.
In claims of ineffective assistance of counsel, we examine whether there has been “serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.”
Commonwealth
v.
Saferian,
We conclude that even if the defendant’s trial counsel had filed a motion to suppress that was allowed, the absence of the statement at the defendant’s trial did not likely deprive him of “an otherwise available, substantial ground of defence,” Commonwealth v. Saferian, supra. As previously explained, it was not the Commonwealth’s burden to prove that the defendant did not have a firearms license, see Commonwealth v. Jones, supra at 406. In addition, apart from the defendant’s statement, there was other evidence from which the fact finder could infer consciousness of guilt, specifically, the defendant’s behavior of attempting to conceal a weapon from the officers as well as evading them while doing so. Most significantly, there was testimony from both officers that they saw the defendant holding a firearm. For these reasons, we conclude that there is no merit to the defendant’s claim of ineffective assistance of counsel.
4.
The defendant’s Second Amendment claims.
Citing
McDonald
v.
Chicago,
a. Overview of Heller and McDonald. In Heller, the United States Supreme Court held that the District of Columbia’s “ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” Id. at 635. In doing so, the Court announced for the first time that the Second Amendment protects an individual right to keep and bear firearms in one’s home for the purpose of self-defense, not simply a collective right to possess and carry arms for the purpose of maintaining a State militia. See id. at 594-620. The Court characterized this right as “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635.
The Court, however, qualified this right, stating that it is “not unlimited.” Id. at 626. The Court affirmed its prior precedent saying that the right protected by the Second Amendment involves only the bearing of arms for a lawful purpose, see id. at 617-618, and explained, “we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation.” Id. at 595. In addition, the Court affirmed its prior precedent limiting the Second Amendment’s reach with respect to the types of weapons possessed or carried, explaining, “the Second Amendment does not protect those weaрons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns,” id. at 625, or “the carrying of ‘dangerous and unusual weapons,’ ” id. at 627, quoting 4 Blackstone 148-149 (1769). The Court declared that a citizen’s Second Amendment right did not prohibit laws regulating who may possess and carry weapons or purchase them, or where such weapons may be carried. The Court explained: “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions аnd qualifica *585 tions on the commercial sales of arms.” Heller, supra at 626-627. The Court noted: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” Id. at 627 n.26.
In
Heller,
the Court acknowledged that in
United States
v.
Cruikshank,
On June 28, 2010, the Court decided McDonald. 12 The Court explained that the Second Amendment right to keep and bear arms is “among those fundamental rights necessary to our system of ordered liberty.” McDonald, supra at 3042. The Court concluded that the right “applies equally to the Federal Government and the States.” Id. at 3050. The Court, however, was unable to agree on how the Second Amendment right applies to the States. Justice Alito, writing the plurality opinion, concluded that the Second Amendment right is incorporated to the States through the due process clause of the Fourteenth Amendment. *586 Id. In contrast, although he agreed that the Second Amendment is “fully applicable to the States,” Justice Thomas concluded that the right “is a privilege of American citizenship that applies to the Statеs through the Fourteenth Amendment’s Privileges or Immunities Clause.” Id. at 3058-3059 (Thomas, J., concurring in part and concurring in the judgment). Of significance, the plurality opinion did not disturb the conclusion in Heller that a citizen’s rights under the Second Amendment are limited. The Court explained:
“It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’ [Heller, supra at 626]. We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on thе commercial sale of arms.’ [Id. at 626-627.] We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.”
McDonald, supra at 3047.
b.
Standing to raise constitutional claims.
The Commonwealth argues that the defendant lacks standing to raise a Second Amendment claim because he did not properly preserve the issue for appeal by filing a pretrial motion, see
Commonwealth
v.
Jasmin,
The defendant was tried in January, 2009, well before the Court decided the
McDonald
case on June 28, 2010, declaring that the Second Amendment is applicable to the States.
McDonald, supra
at 3050. Significantly, prior to
McDonald,
the Court in
Heller
had not overruled its prior precedent that the Second Amendment applied
only
to the
Federal government. Heller, supra
at 620 n.23. This
pre-McDonald
law, not the law of various circuit courts of the United States Court of Appeals or State courts, was the law to which the defendant was bound at the time of his trial. See
Commonwealth
v.
Runyan,
c.
The defendant’s firearm convictions and relevant statutory provisions,
(i)
Unlawful possession of a firearm.
General Laws c. 269, § 10
(h)
(1), makes it an offense to own or to possess a firearm, see note 3,
supra,
in one’s home or place of business without obtaining an FID card pursuant to G. L. c. 140, § 129C. See
Commonwealth
v.
Belding,
(ii)
Unlawful carrying of a firearm.
General Laws c. 269, § 10 (a), makes it an offense to “knowingly” pоssess a firearm outside of one’s residence or place of business without also having a license to carry a firearm that has been issued under the licensing provisions of G. L. c. 140, § 131.
14
See
Commonwealth
v.
Seay,
d.
Constitutional challenges.
Although the defendant argues that G. L. c. 269, § 10, and G. L. c. 140, § 131, violate both the Second Amendment and the equal protection guarantees of the Federal and State Constitutions, he contends that the violations occur in the same manner, namely, based on the fact that the statutes allegedly prohibit persons between eighteen and twenty years of age “from having ordinary firearms even in the home.” Thus, he claims, the statutes unlawfully deny persons of this age group “from obtaining the same means of self-protection
*589
as [adults who are twenty-one years of age].” We confine ourselves to this basis for his constitutional challengеs. See
United States
v.
Salerno,
e. Second Amendment challenges. We note initially that the defendant overlooks that the right secured by the Second Amendment is not unlimited. Both Heller and McDonald make that point clear. See McDonald, supra at 3047; Heller, supra at 626. The Court also emphasized in those decisions that the Second Amendment does not ban all regulation of firearms. See McDonald, supra; Heller, supra at 626-627. Rather, the Cоurt only went so far as to say that the Second Amendment right to keep and bear arms was infringed on when legislation effectuated a total ban of handgun possession, or prevented the use of an operable firearm, in the home. Heller, supra at 629-630.
(i)
Unlawful possession of a firearm in violation of G. L. c. 269, § 10
(h)
(1).
Under G. L. c. 140, § 129B (1) (v), only individuals under the age of fifteen are prohibited from obtaining an FED card. Significantly, the defendant does not contend that he ever attempted to obtain an FED card. Cf.
Heller, supra
at 575 (Heller had applied for and was denied “registration certificate” to possess handgun in his home). The defendant, thus, has not demonstrated that a denial of the issuance of an FID card would have been rendered. Had he been denied an FID card, his recourse is set forth in G. L. c. 140, § 129B (5) (“Any aрplicant . . . aggrieved by a denial ... of [an FID card] . . . may . . . [ninety] days after receipt of notice of such denial . . . file a petition to obtain judicial review in the district court having jurisdiction in the city or town wherein the applicant filed for . . . such card”). Instead of applying for an FID card, the defendant chose to violate the law. In these
*590
circumstances, we conclude that he may not challenge his conviction under G. L. c. 269, § 10
(h)
(1). See
Williams
v.
State,
(ii) Unlawful carrying of a firearm in violation of G. L. c. 269, § 10 (a). With respect to his convictions of unlawfully carrying a loaded firearm, the defendant correctly points out that the licensing scheme, namely the agе disqualification in G. L. c. 140, § 131 (d) (iv), barring the issuance of a § 131 license to carry to an applicant who “at the time of the application [is] less than [twenty-one] years of age,” prohibits young adults between eighteen and twenty years of age from obtaining a § 131 license to carry a firearm. However, as was the case with an FID card, the defendant does not contend that he attempted to obtain a § 131 license to carry. Cf. Heller, supra. As a consequence, the defendant has not demonstrated that a denial of the issuance of a § 131 license to him would have been rendered on account of his age alone. We add that under the licensing scheme, had the defendant been denied a § 131 license to carry (for whatever reason), he could have appealed that decision pursuant to the provisions of the statutory licensing scheme. See G. L. c. 140, § 131 (/) (“Any applicant ... aggrieved by a denial ... of a license . . . may, within either [ninety] days after receiving notice of such denial . . . file a petition to obtain judicial review in the district court having jurisdiction in the city or town wherein the applicant filed for, or was issued, such license”). He chose instead (again) to violate the law. In these circumstances, we conclude that the defendant may not challenge his convictions under G. L. c. 269, § 10 (a). See Williams v. State, supra (defendant could not challenge handgun statute where he had not obtained, or even applied for, handgun permit).
(iii) Equal protection. Because the defendant never applied for an FID card or a § 131 licensе to carry (and was not consequently denied based solely on his age), we need not consider his claim that these provisions violate his Federal and State equal protection rights on account of effecting an age disqualification. We note, however, that Heller stands for the proposition *591 that some categorical bans on firearm possession or use are constitutional, including regulations concerning who may possess a right to keep and bear arms.
5. Conclusion. We affirm the denial of the defendant’s motion to suppress and affirm his convictions.
So ordered.
Notes
At the time of the defendant’s trial, he was nineteen years of age. On the date of the offense on which the charges against him are based, the defendant was eighteen years of age.
The term “firearm” is defined in G. L. c. 140, § 121, as “а pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured.” The firearm here was a .22 caliber revolver.
A charge of assault and battery on a police officer, in violation of G. L. c. 265, § 13D, was dismissed in response to the Commonwealth’s request prior to trial.
The motion judge was not the trial judge.
In his motion to suppress, the defendant asserted that his seizure was unlawful under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. On appeal, he advances his argument solely under art. 14.
We “supplement a judge’s findings of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness’s testimony.”
Commonwealth
v.
Isaiah
I.,
Although we conclude that a seizure was effectuated in this case at this time, our conclusion does not suggest that the police could not earlier have effectuated a seizure of the defendant after they initially observed him concealing a weapon, at which point he fled. The defendant’s flight no doubt prevented the police from taking earlier action.
At the suppression hearing, Officer Bias testified that he had рointed his gun at the defendant, but at trial he stated he had raised the gun in front of him toward the defendant, but had not been able to point it directly at the defendant “because I was running.” The distinction does not alter our conclusion.
General Laws c. 278, § 7, provides 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.”
The Second Amendment to the United States Constitution provides: “A *584 well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
In
McDonald
v.
Chicago,
General Laws c. 140, § 129C, enumerates numerous “persons and uses” that are exempt from its provisions. The defendant does not argue that he falls under any of these exemptions.
The defendant does not argue that any exemptions to the licensing requirements under G. L. c. 140, § 131, apply to him.