(dissenting):
In a scene that could be taken from the opening part of the movie “A Few Good Men,” ten Marines held a dangerous and unauthorized hazing ritual (called a “blanket party”) with a Marine who was not performing up to “Corps standards” in a training exercise at Twentynine Palms, California. The victim, Private First Class Simon, was alone in his barracks area when the ten Marines who decided to punish him grabbed him, threw him to the floor, bound his feet and ankles together with tape, kicked him, punched him, and finally one Marine (Corporal Davis) put a gun to his head and said, “You’re nothing but a pussy. I ought to cap [kill] you now.” Record at 72. The gun may have been unloaded.1 However, Private *488First Class Simon did not know this and thought Davis “had my life in his hands.” Id.
For his role in the unauthorized “blanket party,” Davis was convicted of assault with a dangerous weapon among other charges. The majority reduces this crime to simple assault because it holds that the handgun used in this case was not a dangerous weapon. In my view, prosecutors, law enforcement officials, and perhaps all victims of armed assaults who have looked into the barrel of a gun or who have had a gun held to their head would not agree with that decision. I certainly do not. I refuse to legally turn a sword into a plowshare or a Barretta into a banana.
In the circumstances of this case, I would hold that the unloaded gun held to the head of the Marine who thought it was loaded was “a dangerous weapon” under Article 128, Uniform Code of Military Justice, and that appellant committed an aggravated assault. I would rely on the fact that this was an offer-type assault (reasonable fear of victim is basis of assault), plus the law of the Supreme Court in McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986) (unloaded gun is a dangerous weapon under the federal bank robbery statute). The majority relies on para. 54c(4)(a)(ii), Part IV, Manual for Courts-Martial, United States, 1984 (1994 ed.), but it provides an untenable explanation of the term “dangerous weapon” found in Article 128(b)(1).
More particularly, the majority today rejects Supreme Court precedent holding that an unloaded gun is “a dangerous weapon” as a matter of federal criminal law. See United States v. McLaughlin, supra. On the basis of apparently gratuitous comment in a Manual explanation of other language in Article 128 (“or other means or force likely to produce death or grievous bodily harm”), the majority narrowly constricts the “a dangerous weapon” language of this statute, contrary to its plain meaning. Even assuming the Manual explanation applies also to the words “a dangerous weapon” in Article 128(b), I cannot join the majority. In my view, this explanation is inconsistent with Article 128 and infringes on Congress’s substantive criminal law-making powers under Article I, § 8, Clause 14, of the United States Constitution. See generally United States v. Gonzalez, 42 MJ 469, 474 (1995); United States v. Henry, 35 MJ 136, 137 (CMA1992).
When reviewing statutory questions, it is helpful to note the precise statutory language under review in the statutory context in which it exists. See 2A Sutherland Statutory Construction §§ 47.01 and 47.02 at 136-39 (5th ed.1992). Article 128 provides:
(a) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.
(b) Any person subject to this chapter who—
(1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or
(2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon; is guilty of aggravated assault and shall be punished as a court-martial may direct.
(Emphasis added.) In my view, Congress clearly intended this statute2 to prevent assaults by servicemembers using weapons that are actually dangerous or which are reasonably perceived to be dangerous. See United States v. Milton, 46 MJ 317, 319 (1997).
*489The Supreme Court succinctly stated why an unloaded gun is a dangerous weapon:
Three reasons, each independently sufficient, support the conclusion that an unloaded gun is a “dangerous weapon.” First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.
McLaughlin, 476 U.S. at 17-18, 106 S.Ct. at 1678 (footnote omitted). This reasoning is especially applicable in the military, where the first rule of combat-weapon handling is that all guns are to be treated as loaded weapons.3
The majority provides no basis for distinguishing the dangerous-weapon aspect of the federal criminal law in McLaughlin and the federal criminal law at issue in this case. The “dangerous weapon” explanation and holding by the Supreme Court in McLaughlin should apply with equal force to the law at issue in this case as a matter of common law (and common sense). Outside of the different numbers on these two laws, I do not see the reason why in one law an unloaded weapon is a dangerous weapon and not a dangerous weapon in the other. If appellant had committed this assault while robbing a federally insured bank, we would have, under the majority’s reasoning, the unlikely result of the weapon being viewed as a dangerous weapon for the purpose of the bank robbery but not a dangerous weapon for purposes of an assault under Article 128. This result I cannot accept.
I again note that this ease involves an offer-type assault. Cf. United States v. Joseph, 37 MJ 392, 398 (CMA 1993) (Sullivan, C.J., concurringXdescribing three theories for conviction of predicate offense of simple assault). However, the majority concedes that when a serviceperson threatens to shoot an unloaded gun aimed at the head of a victim who believes the gun is loaded, the victim is in reasonable apprehension not of bodily harm but death or grievous bodily harm. Nevertheless, the majority rejects common sense in this case because of the Manual’s unrevised reliance on archaic dicta in several earlier cases from this Court. See United States v. Smith, 4 USCMA 41, 15 CMR 41 (1954); United States v. Norton, 1 USCMA 411, 4 CMR 3 (1952).
In sum, the Supreme Court has held that an unloaded gun is a dangerous weapon. See United States v. McLaughlin, supra. Admittedly, the statute under review in McLaughlin involved the crime of assault while robbing a federal bank. See 18 USC § 2113(d). Nevertheless, the rationale articulated by a unanimous Supreme Court construing the same statutory term at issue before our Court has not been distinguished and, therefore, it must be followed for purposes of Article 128. See generally United States v. Allbery, 44 MJ 226 (1996)(follow it or distinguish it rule of precedent). McLaughlin, sub silentio, overrules Price v. United States, 156 F. 950 (9th Cir.1907), on which our earlier dicta and paragraph 54c(4)(a)(ii) of Part IV of the Manual were based.
I would allow Corporal Davis’ conviction for aggravated assault to stand.
. There was contradictory evidence at the trial as to whether the gun was unloaded. The gun, hidden after the assault, was found 1 week later with three rounds loaded in it. Pros. Ex. 1. Davis, in his testimony (viewed by the Government as self-serving), stated that the gun was "totally unloaded.” The judge, however, resolved the factual issue and found the gun to be unloaded.
. The Supreme Court reached a similar conclusion concerning Congress’ intent in enacting 18 USC § 2113(d). In McLaughlin v. United States, 476 U.S. 16, 18 n. 3, 106 S.Ct. 1677, 1678 n. 3, 90 L.Ed.2d 15 (1986), it said:
The floor dehate on the provision that became § 2113(d) indicates that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden' gun) as "dangerous” within the meaning of the statute. See 78 Cong. Rec. 8132 (1934)(colloquy among Reps. Sumners, Blanton, and Dockweiler).
. Real life in the armed forces is contrary to the "Barretta into bananas” logic of the majority. For a warrior, all weapons are to be treated as loaded. For example, the Guidebook for Marines (11th revised ed.1966) makes clear the military reality in the case before us:
Safety Precautions
A weapon is just as safe as the man behind it, regardless of how well built it is or how many safety features it has. Unless the man who handles it respects it as a deadly weapon, it
is a source of danger to him and everyone near him. Many tragic accidents can be avoided if everyone will remember a few simple safety precautions when handling firearms.
A. General Rules.
1. Consider every weapon to be loaded until you examine it and find it to he unloaded. Never trust your memory in this respect. There is an old saying among hunters that "the empty gun shoots the loudest.”
Id. at 299 (emphasis added).