dissenting:
I respectfully dissent. The majority has unfortunately constructed its opinion on a fundamentally flawed premise, that this is a case of first impression. The majority has also apparently engaged in a process of result-oriented wishful thinking, blurring the distinction between what the law perhaps should be and what the law, in fact, is. The issue in this case is very narrow and important. It is simply whether an unloaded firearm, when merely pointed at someone, is a dangerous weapon, as that term is used in Article 128(b)(1), Uniform Code of Military Justice, 10 U.S.C. § 928(b)(1), [hereinafter Article 128(b)(1)], We emphasize the last part of the preceding sentence because the majority would have us believe that because the Supreme Court has held that an unloaded firearm is a dangerous weapon as that term is used in a federal civilian bank robbery statute, and because this court and our superior court have held that an unloaded firearm is a dangerous weapon for two nonArtiele 128(b)(1) offenses, it necessarily follows that an unloaded firearm is always a dangerous weapon for every offense under the UCMJ, including Article 128(b)(1). That faulty reasoning results in their decision, which is unsupported by any applicable legal authority. The majority ignores many decades of military precedent, contrary or distinguishing aspects of its own cited cases, the documented history of Article 128(b)(1), and fundamental rules of statutory interpretation. The majority has, in effect, improperly legislated a change to Article 128(b)(1). I will not join in such an ill-advised endeavor.
The appellant was charged with assault with a dangerous weapon, a loaded pistol, in violation of Article 128(b)(1). Pursuant to a pretrial agreement, he pled guilty to the lesser included offense of simple assault consummated by battery (pointing an unloaded pistol at the victim and touching the victim’s head with the pistol). The Government went forward on the greater offense. Whether the pistol was loaded at the time of the assault was a disputed question of fact. The general court-martial, military judge alone, found that the pistol was unloaded but found the appellant guilty of assault with a dangerous weapon; the unloaded pistol. It is clear from the record that the trial judge reached his decision to find the appellant guilty of the aggravated assault, even though the pistol was not loaded, by using as authority a subsequently overruled decision by a single panel of the Army Court of Criminal Appeals.
The appellant was a member of a group of Marines who subjected another Marine to what is commonly referred to as a blanket party, during which the victim was beaten and kicked. During the attack, the appellant pointed a pistol at the victim and touched the victim’s head with the muzzle of the pistol. As we indicated above, the trial court found that the pistol was not loaded. However, the victim was not aware of that fact. Additionally, although the appellant denied saying the words, the trial court also found the appellant guilty of communicating a threat by saying “I ought to cap you,” as he pointed the pistol at the victim. The majority indicates that the victim was placed in fear for his life. We do not know this to be the case, because the victim did not so testify.
The victim testified that he believed the appellant may have struck him on the back of *688Ms head with the pistol during the assault. For some unexplained reason, however, that factual allegation was deleted from the aggravated assault specification prior to trial. Therefore, the use of the unloaded pistol as a bludgeon, wMch may have qualified it as a dangerous weapon for Article 128(b)(1) under a traditional analysis, cannot be used for such a purpose in this case.
We are left with a pure question of law, whether merely pointing an unloaded pistol at someone constitutes the offense of assault with a dangerous weapon, as that term is used in Article 128(b)(1).
The trial and defense counsel both submitted legal briefs on the specific issue to the military judge. See Appellate Exhibits IV and V. The trial judge expressed his reliance on the case of United States v. Sullivan, 36 M.J. 574 (A.C.M.R.1992), offered by the trial counsel, as authority for his holding that the appellant’s unloaded pistol was a dangerous weapon, notwithstanding the express language of MCM, Part IV, ¶ 54e(4)(a)(n), indicating that “an unloaded pistol, when presented as a firearm and not as a bludgeon, is not a dangerous weapon ... whether or not the assailant knew it was unloaded.”
In Sullivan, the accused pointed a loaded pistol at the victim. The Sullivan Army panel held first that no pistol, loaded or not, qualified as a dangerous weapon unless the Government established that the pistol was functional at the time of the assault, wMch the prosecutor had not done in that case. Inexplicably, and unnecessarily, the Sullivan panel also held that a pointed unloaded pistol is a dangerous weapon, if functional, citmg the Supreme Court’s decision in McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986). Finally, in a footnote, the Sullivan panel also opined that MCM, Part IV, ¶ 54c(4)(a)(ii), Part IV, MCM was therefore no longer valid.
In McLaughlin, a very short opirnon, the accused and a compamon robbed a bank. McLaughlin displayed an unloaded pistol during the robbery. He was charged with and convicted of violating a federal bank robbery statute, 18 U.S.C. ■ § 2113. Under that statute, pumshment was enhanced if the actor put the life of any person in jeopardy by the use of a dangerous weapon. The statute did not define the term “dangerous weapon.” To resolve a conflict among two Federal circuits regarding the interpretation of that term in that statute, the Supreme Court granted certiorari. The extent of the holding is important. The issue before the Supreme Court was whether an unloaded handgun was a dangerous weapon “within the meamng of the federal bank robbery statute” (emphasis added). McLaughlin, 476 U.S. at 16,106 S.Ct. at 1677. The Court held that the trial and intermediate appellate courts were correct in concluding that McLaughlin’s unloaded pistol was a dangerous weapon “within the meamng of 18 U.S.C. § 2113(d)” (emphasis added). McLaughlin, 476 U.S. at 17, 106 S.Ct. at 1678. In giving reasons for its decision, the Court, in a footnote, cited floor debate on that particular statute. It is very clear to us that the decision in McLaughlin was expressly limited to an interpretation of a term in the bank robbery statute. That Court did not expressly, or by reasonable implication, hold that the term “dangerous weapon” shall have the same meamng in every Federal and military statute. The Court was obviously not interpreting the term “dangerous weapon” as it is used in Article 128(b)(1). The result in the case at bar is that the majority makes the same mistake that the Sullivan panel did by applying the McLaughlin holding to an Article 128(b)(1) interpretation.
Subsequent to Sullivan, in United States v. Rivera, 40 M.J. 544 (A.C.M.R.1994), a different Army panel rejected the Sullivan panel’s reliance on McLaughlin, rightfully we believe. In Rivera, the court held that an unloaded firearm is not a dangerous weapon as that term is used in Article 128(b)(1), when merely pointed at a victim. The Rivera opirnon is important and very useful because it provides an excellent examination of the military’s historical interpretation of the term “dangerous weapon”, as used m Article 128(b)(1). The Rivera opirnon will be addressed in more detail below.
Finally, in United States v. Turner, 42 M.J. 689 (Army Ct.Crim.App.1995), the Army court, en banc, expressly overruled Sullivan. Turner had pointed an unloaded *689pistol at Ms victims, both of whom believed the pistol to be loaded. AmmuMtion for the unloaded pistol was nearby and available. With the Turner decision, the Army court reaffirmed its Mstorical position that an unloaded firearm, when merely pointed at someone, is not a dangerous weapon as that term is used in Article 128(b)(1), UCMJ.
Article 128(b)(1), indicates that “any person ... who commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm ...- is guilty of an aggravated assault____” That language has not changed smce first enacted by Congress in 1950. The term “dangerous weapon” has never been defined in Article 128 or elsewhere in the UCMJ. As will be seen, the term is explained in the MCM.
The Rivera case provides us with an excellent Mstory of the interpretation of the language m question, especially at pages 546 through 549. We will only add to or emphasize certain parts of the Army court’s useful analysis. It is clear to us that in 1950, Congress, m Article 128(b)(1), codified existrng military law. That body of military law can easily be traced back to the seminal case of Price v. United States, 156 F. 950, 951 (9th Cir.1907). The Price court expressly held that an uMoaded firearm, when merely pomted at someone, is not a dangerous weapon when the charge is assault with a dangerous weapon. The Price court, citing United States v. Williams, 2 F. 61, 64 (C.C.D.Or. 1880), also expressly concluded an object must be used in such a manner that is likely to produce death or great bodily injury in order to be a dangerous weapon. These fundamental concepts became what we will refer to as the Price rule. In applying the Price rule, the primary focus is on the use of an object and its resultant actual capability to inflict great harm.
The Rivera opimon, and the cases cited therein, describe in detail the adoption of the Price rule in military practice. It has been applied, without exception, for decades. During some of the developmental period, state and Federal jurisdictions were split on the question of whether the mere pointmg of an uMoaded firearm at someone constituted any assault, simple or aggravated. The legal principle adopted and developed in military practice is that such a scenario is an assault but not an aggravated form of the offense. For the offense of assault with a dangerous weapon, focus in the military has consistently been on the actual ability to inflict harm as a result of the particular use of the weapon as opposed to the apparent ability to do harm as perceived by the victim.
The earliest Navy case with the facts on point that we are aware of is found at page 48 of Court-Martial Order [C.M.O.]-1 of 1950. TMs was a pre-UCMJ case. The accused in that ease pointed an unloaded firearm at the victim and was prosecuted for assault with a dangerous weapon. The case was resolved applying the Price rule. The Price rule was subsequently expressly applied in United States v. Lamb, 1 C.M.R. 440, 1951 WL 1659 (A.B.R.1951), petition denied, 1 C.M.R. 100, 1952 WL 1150, 1952 WL 1154 (C.M.A.1952), also a pre-UCMJ case. Lamb was a particularly egregious case in which four soldiers brutally terrorized and raped a Korean woman in the presence of her husband while pointing pistols at her and family members. Lamb had been convicted of assault with a dangerous weapon, but the Government had failed to establish that the pistol was loaded. Military appellate courts had the opportumty with those facts to repudiate the Price rule, but did not do so, and the aggravated assault conviction did not withstand appellate review.
See also the following Article 128(b)(1) cases, in wMch the Price rule was applied without exception. United States v. Vigil, 13 C.M.R. 30, 32, 1953 WL 2386 (1953), United States v. White, 4 C.M.R. 623, 624-5, 1952 WL 2836 (A.F.B.R.1952), United States v. Jones, 5 C.M.R. 507, 510, 1952 WL 2191 (A.F.B.R.1952), petition denied, 5 C.M.R. 130, 1952 WL 2973 (1952), United States v. Reid, 42 C.M.R. 573, 574, 1970 WL 7166 (A.C.M.R.1970), United States v. Bush, 47 C.M.R. 532, 535,1973 WL 14777 (C.G.C.M.R. 1973), United States v. Cato, 17 M.J. 1108, 1109 (A.C.M.R.1984).
Except for the overruled Sullivan decision, the decision of the majority in the case at bar is umque: In the almost 45 years since the Lamb decision, we are unaware of precedent *690holding that an unloaded weapon, when pointed at someone, is a dangerous weapon, as that term is used in Article 128(b)(1).
The Rivera court also traces the history of Article 128(b)(1). We add the following to that accounting. In paragraph 180(Z) of the 1949 MCM for the Army, there is a discussion of the Ninety-third Article of War, which includes the offense of assault with a dangerous weapon. That discussion includes the Price rule by indicating that weapons are dangerous only if used in a manner likely to produce death or great bodily harm. The discussion adds that the mere potential for such use is not enough and that a pistol may be used in such a manner as to not qualify as a dangerous weapon.
Similarly, beginning at page 286 of the Legal and Legislative Basis, Manual For Courts-Martial, United States, 1951, there is a discussion of paragraph 207b of the 1951 MCM (applicable for the first time to all services), which addresses the newly-created Article 128(b)(1). The discussion again indicates that the pointing of an unloaded pistol at a person does not amount to an aggravated assault, citing Price. These MCM explanations of the principle of law immediately prior to and immediately after, implementation by Congress of Article 128(b)(1) are further persuasive indicators that Congress adopted the Price rule. If it had not, we can reasonably expect that the post-1950 MCM explanation of the rule of law would reflect that change. Finally, we note that the Price rule has been expressly included in every MCM since 1950.
The majority dismisses the MCM language as an improper attempt by every President since Price was adopted in military practice to establish an element of an offense. The majority misses the point. The MCM language is persuasive evidence of what the law is in the military at a particular point in time. In effect, pertinent parts of the MCM are correct statements or restatements of the law. To conclude otherwise would be to conclude that those parts of the MCM are useless and meaningless or that all of our predecessors who helped draft those provisions were uninformed. There being no evidence for. such a proposition, we are unwilling to conclude that our legal forbearers misstated the law for several decades. Every MCM provision since Price and all the case law, except for Sullivan and the majority’s opinion, are incontrovertible evidence that for decades a body of military law developed consistently applying the Price rule, that the body of law, with the Price rule, was codified in 1950 in Article 128(b)(1), and that the Price rule has been applied without exception since.
When Article 128(b)(1) was first enacted, there was no confusion about the meaning of the term “dangerous weapon” among military practitioners. Some of those practitioners undoubtedly participated in great measure in the drafting not only of the first uniform MCM, but also with the drafting of the UCMJ. There is a complete absence of any evidence that Congress did not adopt the Price rule. There is also a complete absence of evidence that Congress has ever felt the need to subsequently modify the UCMJ because of any misapplication of this specific article by the military.
When Article 128(b)(1) was enacted, common law development rules regarding the offense no longer applied. Instead, there was simply application of the statute to the facts of a particular case. The majority, in effect, has improperly engaged in a process of common law development after the implementation of Article 128(b)(1). The result is an improper legislative change to that statute by the majority.
Additionally, one needs only to read the plain and unambiguous language of Article 128(b)(1), to see that the majority’s interpretation is tortured. This article does not use the words “assault with a dangerous weapon or a means or force likely to produce death or grievous bodily harm.” The specific wording of the statute, “or other means or force likely to produce death or grievous bodily harm”, leads us to only one natural, common sense conclusion; that Congress intended that the use of a weapon, or a means, or a force must all be likely to produce death or grievous bodily harm for the offense of aggravated assault to lie. Any other interpretation is forced and without any historical support. An unloaded firearm, when merely *691pointed at someone, is incapable of producing such required harm.
The majority would cite McLaughlin for the proposition that an unloaded firearm is dangerous because of the effect it has on victims when pointed at them, or because pointing such an object might produce a deadly response. There is no denying the potential fear generated by pointing an unloaded weapon at a person. However, that does not make the weapon dangerous as that term is used in Article 128(b)(1), and military appellate courts have consistently rejected focus on the fear generated in the victim to determine whether there is an Article 128(b)(1) offense. There are alternative ways to ensure appropriate punishment for someone who points an unloaded firearm at another person. Two obvious methods come to mind. First, Congress can amend Article 128 to include unloaded firearms as dangerous weapons. Second, the President can amend the MCM to increase the punishment in these cases. That is exactly the process that is apparently now underway. A proposed Executive Order is now pending that would amend ¶ 54e(1), Part IV, MCM, which is the section of the Manual establishing the maximum punishments for all Article 128 offenses. That amendment recognizes the Price rule and dramatically increases the maximum authorized sentence in cases in which an unloaded firearm is pointed at someone. Not only does the proposed Executive Order still recognize the validity of the Price rule, it establishes the necessary fix that is the real concern of the majority, increased punishment in these cases.
In addition to McLaughlin, the majority cites other cases to support their decision. However, those cases all have important distinguishing characteristics making them inapplicable to the appellant’s case.
The majority’s reliance on United States v. Booker, 37 M.J. 1114 (N.M.C.M.R.1993), aff'd, 42 M.J. 267 (1995), is unfounded. Booker was convicted of carrying a concealed weapon in violation of Article 134, UCMJ, 10 U.S.C. § 934. On review, Booker contended that his guilty plea was improvident because the weapon was locked in the glove compartment of the vehicle he was driving and was therefore not accessible to him. The issue before that Court was whether his plea to carrying a concealed weapon was provident because he had no access to the weapon. For reasons completely unrelated to the issue in the appellant’s case, our court concluded that the plea was provident. As a purely collateral matter to that ease, ¶ 112, MCM, applicable by its own terms only to the charged Article 134 offense, indicates that for the offense of carrying a concealed weapon to lie, the weapon must be dangerous. Although Booker’s weapon was unloaded, whether the unloaded weapon was a dangerous weapon was not an issue before the court. Even if it was, the President defined the term “dangerous weapon” in ¶ 112, MCM, “for purposes of this paragraph” (emphasis added). Booker’s was an Article 134 violation, with the dangerous weapon term defined expressly for that offense only. That case is inapplicable to the appellant’s.
In United States v. Palmer, 41 M.J. 747 (N.M.Ct.Crim.App.1994), the accused had been convicted of violating Article 92, UCMJ, 10 U.S.C. § 892, for ignoring a provision of a Navy regulation prohibiting the wrongful possession of dangerous weapons. Our court expressly distinguished Article 128(b)(1) cases from wrongful possession cases brought as order violations under Article 92, UCMJ, 10 U.S.C. § 892. Our court also expressly recognized that for assault cases, focus should be on the use of the object to determine whether it is a dangerous weapon (the Price rule) but for possession cases, focus may be on the nature of the object; i.e., its design and intended purpose. Palmer, 41 M.J. at 749. We then indicated that the gist of that appellant’s crime was the same as the offense of carrying a concealed weapon. Id. In short, we concluded that the Booker analysis was appropriate. Therefore, we also concluded that the applicable definition for the term “dangerous weapon” was the one found in ¶ 112, MCM, the section pertaining to the offense of carrying a concealed weapon. Our decision in Palmer is not inconsistent with the Price rule, and Palmer certainly is not applicable to the appellant’s case.
In United States v. Henry, 35 M.J. 136 (C.M.A.1992), the accused was convicted of *692robbery, in violation of Article 122, UCMJ, 10 U.S.C. § 922. The Government contended that Henry qualified for the President’s enhanced sentencing scheme found in the MCM because of the use of a firearm during the robbery and the term “firearm” was defined in the MCM. In fact, the weapon used was inoperable. The issue was whether the inoperable weapon was a firearm as that term is used in the MCM. The issue was not whether the weapon was a dangerous weapon as that term is used in Article 128(b)(1). The Henry ease is not inconsistent with the Price rule. It is, however, inapplicable to the appellant’s case.
As with their inappropriate use of Booker, Palmer, Henry, and McLaughlin, the majority’s reliance on United States v. Smith, 15 C.M.R. 41, 1954 WL 2250 (1954), is misguided. If anything, Smith stands for the proposition the majority seeks to repudiate, that the Price rule is alive and well and accepted by our superior Court.
Smith was convicted of assault with a dangerous weapon, a knife with a 5-inch blade. During a confrontation, Smith pulled his knife, brandished it, then began chasing his victim. Smith never got closer than about 10 yards from his victim and pursued him for only a few yards. The victim, however, was placed in fear for his safety. The members found Smith guilty of assault with a dangerous weapon under Article 128(b)(1). On review, Smith presented the issue of whether a conviction for any assault, aggravated or simple, was precluded because of the distance between him and the victim. Smith 15 C.M.R. at 48.
The majority contends that the Smith Court referred to the MCM explanation of the term “dangerous weapon” for Article 128(b)(1) violations. The majority concludes that our superior court improperly gave the weight of law to the President’s words. That simply is not the case. We have no quarrel with the proposition espoused by United States v. Mance, 26 M.J. 244, 252 (C.M.A. 1988), United States v. Gonzalez, 42 M.J. 469, 474 (1995) and similar cases holding that the President’s or the drafter’s explanations of UCMJ violations contained in the MCM are important but not binding on an appellate court, at least with respect to offenses other than Articles 133 and 134, 10 U.S.C. §§ 933-934, respectively. But, again, the majority misses the point. The particular MCM explanation of what a dangerous weapon is with respect to Article 128(b)(1) was recognized by the Smith Court for what it was, a correct restatement of the law, including the Price rule, as adopted by Congress in 1950 when it enacted Article 128(b)(1). There is a difference between the President improperly establishing an element of an offense and the President merely correctly stating what Congress or the appellate courts have established as the law. The majority would have us give no weight to such Manual provisions. That would be a mistake.
The Smith Court indicates wholehearted agreement with the military principle of law that an unloaded pistol, when presented as a firearm is not a dangerous weapon because under no conceivable circumstances is it likely to produce death or great bodily harm. Smith, 15 C.M.R. at 47. That, of course, is a restatement of the Price rule.
Apparently ignored by the majority is the express indication by the Smith Court that the law involving assault with an unloaded pistol is “wholly inapplicable” to a case in which the weapon of choice is a knife. Smith, 15 C.M.R. at 46. For reasons unrelated to the issue in the appellant’s case, that Court then concluded that the trial court was not wrong as a matter of law in finding Smith guilty of the aggravated assault with the knife.
Just as the Smith Court correctly recognized that the principles of law regarding aggravated assault with a firearm cannot be logically applied to knife assault cases, the reverse should be just as apparent, that the rationale for a decision in a knife assault case is inapplicable to firearm cases.
Intermediate appellate courts such as ours have no choice but to follow the law, distinguish a case if not applying the law, or follow the law with a recommendation that the law be changed. The law is clear in this case. The Price rule applies to military practice today as it has for many decades. The appellant’s ease cannot be distinguished from *693the many that have preceded it. We see no need for a change to Article 128(b)(1), provided the proposed Executive Order is implemented.
We would therefore set aside the guilty finding for aggravated assault and affirm a guilty finding for the lesser-included offense simple assault consummated by a battery in accordance with the established rule of law in the military, affirm the remaining findings, and reassess the sentence.