dissenting:
Defendant Barnes appeals from a judgment sentencing him for the violation of a statute which, in pertinent part, declares it “unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence, to ... possess any firearm....” 18 U.S.C. § 922(g)(9). The statute defines the term “misdemeanor crime of domestic violence” as meaning an offense that' is a misdemeanor under federal or state law; and “has, as an element, the use or attempted use of physical force, or threatened use of a deadly weapon, committed by ... a person with whom the victim shares a child in common....” 18 U.S.C. § 921(a)(33)(i) & (ii).
The case before us turns on statutory interpretation. If the language of a statute has a “plain and unambiguous meaning,” our inquiry ends so long as the resulting “statutory scheme” is coherent and consistent. United States v. Wilson, 290 F.3d 347, 352 (D.C.Cir.2002). As I read the federal firearms statute at issue, Congress required that the underlying misdemeanor statute of conviction must have had as an element “the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a [speci*1369fied related person].” Barnes, according to the record in the case, did possess a firearm and had been convicted of violating D.C.Code § 22-504(a), which outlaws general assaults but makes no mention of the status of any relationship between the perpetrator and the victim. That is, the D.C. statute Barnes previously -violated does not- have as an element the use of force committed by one .of the persons enumerated in 18 U.S.C. ■§ 921(a)(33)(ii). To me, the analysis ends there. Appellant’s record offense is not included within the statutory definition, and the judgment appealed from cannot stand.
The United States argues that Congress’s use of the word “element,” as opposed to “elements,” means that the gravamen of the underlying offense needs to include only the use of force or threatened use of force with an extra-statutory finding that the forbidden use or threat of force was committed by a person who bears the relevant relationship. This argument has been accepted by our District Court, the majority today, and at least one other circuit. See United States v. Meade, 175 F.3d 215, 219 (1st Cir.1999); see also United States v. Smith, 171 F.3d 617, 620 (8th Cir.1999) (alluding to the “singular term ‘element’ ” but with little supporting or elucidating reasoning). Nonetheless, with due respect to all the judges who have concluded otherwise, I find the argument not only unconvincing, but largely meaningless. For the argument today is not how many elements are involved, but what the singular element is.
As Meade properly describes it, that singular word “element” refers “to the immediately following attribute.” Meade, 175 F.3d at 219. Just so, but so what? The restatement of “element” as “attribute” begs the question of what single element-turned-attribute the statute requires. Just as an element might be either simple or complex and remain a single element, so might an attribute. For .example, if a purchaser were to express a strong desire to own a pickup truck which has as an attribute tires manufactured by an American company, that purchaser would not likely be satisfied to sign a contract of purchase specifying only that the truck “have as an attribute tires,” leaving the question of their manufacturer for some discussion outside the contract. We have before us something. far more important than a contract of sale. We have a penal statute. Fundamental to our fairness-centered criminal justice system is the rule of lenity for the interpretation of ambiguous penal statutes. See, e.g., United States v. Singleton, 182 F.3d 7, 13 & n. 12 (D.C.Cir.1999) (collecting authorities). Under the rule of lenity, a criminal defendant is, and should be, afforded the benefit of the doubtful application of ambiguous statutory language. It cannot be gainsaid that the language of this statute is ambiguous. The majority opinion itself is rife with allusions to its ambiguity. “[S]ection 921(a)(33)(A) is not a paradigm of precise draftsmanship.” Maj. Op. at 1356. “[I]f the statute read [otherwise], it would be obvious that ‘committed’ modifies ‘offense.’ ” Maj. Op. at 1360. “If the Congress had more precisely articulated its intention, our ’task would have been easier.” Maj. Op. at 1361. “[T]he Congress somewhat awkwardly included the ‘committed by’ phrase in subpart (ii).” Maj. Op. at 1361. The majority’s grammatical and syntactical analysis defending its interpretation of the statute is quite detailed and quite skilled. But the necessity for such a detailed and skilled analysis itself illustrates the ambiguity of the words construed. I would apply the rule of lenity, and I would reverse the judgment of the District Court.
The supportive arguments offered by the government are equally unconvincing. *1370That a snippet of legislative history is more consistent with the less lenient application of a criminal statute hardly erodes the laudable principles of the rule of lenity. This proposition seems to me quite offensive to our historic sense of fairness in criminal law, indeed, perhaps to the Due Process Clause. Though I do not reach the constitutional argument, it seems to me most inconsistent with fundamental fairness and certainly with the rule of lenity to suppose that for a defendant to understand that his conduct is illegal, he must read not only the words of the statute, but find and construe the abstruse comments of a single senator on a single day. See 142 Cong. Rec. 510377-01, *510377-78 (1996).
As to the argument that the statute as I would construe it applies in fewer states than the statute as construed by the government, I frankly do not see how this proves anything at all. The government admits in its brief that the Supreme Court has held repeatedly that Congress may validly and constitutionally adopt criminal laws that apply differently in different states based upon variances in state law. See, e.g., United States v. Sharpnack, 355 U.S. 286, 293, 78 S.Ct. 291, 295-96, 2 L.Ed.2d 282 (1958) (holding that Congress had constitutional authority to pass the Assimilative Crimes Act, making state law applicable to federal enclaves within the states, and citing other statutes that define federal offenses based upon variances in state law); see also United States v. Sacco, 491 F.2d 995, 1003 (9th Cir.1974) (the fact that federal statute prohibiting illegal gambling businesses applies only in states where gambling is illegal “does not result in a denial of equality”).
Finally, the majority stresses an argument based on the use of the word “committed” theorizing that “use of force” is not “committed.” I would note at the outset that this is an argument not made by the parties. As a matter of first principles, I have no problem with that fact. As I have - written before, the appropriate question is not whether an argument is raised by the parties, but whether an issue is properly brought before the court. “ ‘When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.’ ” Eldred v. Reno, 239 F.3d 372, 384 (D.C.Cir.2001) (Sentelle, J., dissenting) (quoting United States Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446, 113 S.Ct. 2173, 2178, 124 L.Ed.2d 402 (1993)). However, the majority’s reliance upon an argument not made by the parties is at least arguably in conflict with circuit law. See Seattle Opera v. NLRB, 292 F.3d 757, at 763 & n.8 (D.C.Cir.2002). Nonetheless, even if we treat the argument as properly before us, I find it unconvincing. I see no reason beyond the majority’s ipse dixit to conclude that the “use of force” is not “committed” by the related person.
In short, I respectfully dissent.