concurring:
The court’s opinion persuasively demonstrates that the district court abused its discretion when it systematically excluded members of the National Rifle Association from Salamone’s petit jury with no record basis for concluding that they would be unable to perform the duties of a juror.1 I also find myself in agreement with the court’s conclusion that a new trial is required. Our views differ only in that I am unable to find that Salamone has shown actual prejudice. I reach the same result, however, because I conclude that a show*1230ing of actual prejudice is not required in a situation of this kind.
Just as the record in this case is devoid of any basis for excluding NRA members, it is similarly devoid of any evidence which would support a finding that those in fact chosen were anything other than impartial, conscientious, law-abiding citizens who reached a conclusion consistent with the law and the facts of the case. “[Ejxactly the same twelve individuals could have ended up on his jury through the ‘luck of the draw’ ”, and Salamone clearly would have no complaint. Lockhart v. McCree, — U.S.- 106 S.Ct. 1758, 1767, 90 L.Ed.2d 137 (1986). Accordingly, I cannot subscribe to the suggestion that Salamone’s jury has been shown to have been “stacked” against him. See Witherspoon v. Illinois, 391 U.S. 510, 523, 88 S.Ct. 1770, 1778, 20 L.Ed.2d 776 (1968). Nor can I agree that the freeing of government peremptory challenges is sufficient prejudice to require a new trial. Every error of exclusion for cause by a trial judge frees a peremptory challenge for someone and the general rule has been that such errors do not require reversal when those actually chosen as jurors have been qualified through the voir dire process. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 555-556, 104 S.Ct. 845, 849-50, 78 L.Ed.2d 663 (1984) (finding that “it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process” and holding that to obtain a new trial, “a party must first demonstrate that a juror failed to answer honestly a question on voir dire, and then further show that a correct resp would have provided a valid basis for a challenge for cause.”); Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982) (“[D]ue process does not require a trial every time a juror has been placed in a potentially compromising situation____ The safeguards of juror impartiality, such as voir dire ..., are not infallible.”); King v. State, 287 Md. 530, 414 A.2d 909, 913 (Md.1980) (quoting Blumenthal & Bickart v. May Co., 126 Md. 277, 96 A. 434, 438 (Md.1915)): “The authorities support the proposition that it is not reversible error for the Court of its own motion to exclude a juror, even for insufficient cause, if an unobjectionable jury is after-wards obtained.”); State v. Mathis, 52 N.J. 238, 245 A.2d 20, 27 (N.J.1968), rev’d on other grounds sub nom. Mathis v. New Jersey, 403 U.S. 946, 91 S.Ct. 2277, 29 L.Ed.2d 855, reh. denied, 404 U.S. 876, 92 S.Ct. 31, 30 L.Ed.2d 125 (1971).
It is, of course, not surprising that Salamone has not shown that his jury acted differently than would one chosen without the arbitrary exclusions. As the court observes, such a showing is virtually impossible to make. That fact alone counsels against imposing a requirement that actual prejudice be shown. But more importantly, our society’s interest in maintaining confidence in the integrity of its criminal justice system mandates that the process in this case be repeated. See King, 414 A.2d at 913, (“Although this [Blumenthal & Bickart] principle may be applicable in cases where the reason for excusing a juror is related to that particular juror, it is inapplicable when an entire class holding a certain belief is excluded.”); Mathis, 245 A.2d at 27 (“That [Blumenthal & Bickart] rule is sound enough when the focus is merely upon a defendant’s entitlement to a particular juror ... But when the challenge goes beyond that limited issue and implicates the right to be tried by a jury which is representative of the community, it would be no answer to a systematic exclusion to say that the 12 jurors who decided the case were individually impartial.”) (emphasis in original).
As the court correctly notes, the Supreme Court held in McCree, 106 S.Ct. at 1764, that the constitutional requirement of a “representative cross-section of the community” is inapplicable in a case where the exclusion of jurors from a petit jury is at issue. The fair cross-section cases, accordingly, do not aid Salamone in establishing that the district court erred. Nevertheless, the values at stake in those cases are also implicated here and should be taken into account in deciding whether there is to be a remedy.
The alternative holding of McCree is that the exclusion of Witherspoon-excludables *1231(i.e. those whose views regarding capital punishment are such as to prevent or substantially impair the performance of their duties as jurors in accordance with their instructions and oath) would not violate the fair cross-section requirement even if it were applicable to petit juries. In the course of reaching this conclusion, the Court distinguished McCree’s situation from those involved in the cross-section cases on a basis which also distinguishes this case from McCree. The Court emphasized that the jurors excluded from McCree’s jury had been reliably found to be unable to faithfully perform their duties as jurors. Here, as in the cases where the cross-section requirement has been found to have been violated, there is no record basis for finding that the excluded jurors were similarly disabled. Accordingly, unlike the exclusion in McCree, the exclusion in Salamone’s case was a class exclusion wholly unrelated to the capacity of the members of the class to serve as jurors in his case.
The alternative holding of McCree was based on the Court’s view that the exclusion of jurors who were not able to perform their assigned tasks did not contravene any of the purposes of the fair cross-section requirement. Quoting from Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the court identified those purposes as:
(1) “guarding] against the exercise of arbitrary power” and ensuring that the “commonsense judgment of the community” will act as “a hedge against the overzealous or mistaken prosecutor,” (2) preserving “public confidence in the fairness of the criminal justice system,” and (3) implementing our belief that “sharing in the administration of justice is a phase of civic responsibility.” Id., 419 U.S., at 530-531, 95 S.Ct., at 697-98.
The McCree Court went on to distinguish the previously decided cases in which there had been arbitrary class exclusions of blacks, women, and Mexican Americans:
Because these groups were excluded for reasons completely unrelated to the ability of members of the group to serve as jurors in a particular case, the exclusion raised at least the possibility that the composition of juries would be arbitrarily skewed in such a way as to deny criminal defendants the benefit of the commonsense judgment of the community. In addition, the exclusion from jury service of large groups of individuals not on the basis of their inability to serve as jurors, but on the basis of some immutable characteristic such as race, gender, or ethnic background, undeniably gave rise to an “appearance of unfairness.” Finally, such exclusion improperly deprived members of these often historically disadvantaged groups of their right as citizens to serve on juries in criminal cases.
Because the “group of Witherspoon-excludables” “is carefully designed to serve the state’s concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both ... phases of the capital trial,” the McCree Court found “very little danger” that capital case juries would be arbitrarily skewed. 106 S.Ct. at 1766. Moreover, “because the group of ‘Witherspoow-excludables’ includes only those who cannot and will not conscientiously obey the law with respect to issues in a capital case, ‘death qualification’ hardly can be said to create an ‘appearance of unfairness’.” 106 S.Ct. at 1766. Finally, according to the McCree Court:
... the removal for cause of “Wither-spooji-excludables” in capital cases does not prevent them from serving as jurors in other criminal cases, and thus leads to no substantial deprivation of their basic rights of citizenship. They are treated no differently than any juror who expresses the view that he would be unable to follow the law in a particular case.
106 S.Ct. at 1766.
The McCree Court summarized its holding as follows:
In sum, “Witherspoon-excludables,” or for that matter any other group defined solely in terms of shared attitudes that render members of the group unable to serve as jurors in a particular case, may be excluded from jury service without contravening any of the basic *1232objectives of the fair cross-section requirement.
106 S.Ct. at 1766 (Emphasis supplied).
The McCree Court noted in the course of its analysis that the groups excluded from juries in the fair cross-section cases have “immutable characteristics” and that this distinguishes them from Withersppon-excludables. This also distinguishes members of the National Rifle Association from blacks, women, and Mexican Americans. Nevertheless, in the context of the McCree Court’s analysis, the meaningful distinction is between arbitrary class exclusions and exclusions based on a determination that the excluded group cannot perform as jurors.
The arbitrary exclusion of citizens based solely on their association in a group like the NRA, poses a threat to the interests protected by the fair cross-section requirement similar to that posed by the exclusion of blacks, women, and Mexican Americans. Because the effects of arbitrary class exclusions based on shared views or associations are impossible to predict and “arbitrary skewing” cannot be ruled out, such exclusions necessarily undermine the confidence of the defendant and the public in the fairness of the process. Moreover, here as in the fair cross-section cases, there is the appearance of the prosecution, with the assistance of the court, attempting to “stack the deck” against the defendant. Finally, discrimination in jury selection against a group associated in part for the purpose of influencing political action in which members have a common interest is no more acceptable than similar discrimination which offends other constitutionally protected values.
I make these observations not to suggest that Salamone was entitled to a petit jury representing a fair cross-section of his community, but rather because the interests protected by the fair cross-section requirement have heretofore been considered of sufficient importance to our society that violations have mandated reversals without reference to whether the particular defendant has been able to demonstrate actual prejudice. Taylor, 419 U.S. at 532, 95 S.Ct. at 698 (quoting Ballard v. U.S., 329 U.S. 187, 193, 67 S.Ct. 261, 264, 91 L.Ed. 181 (1946)): (“To insulate the courtroom from either [men or women] may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded.”); Davis v. Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 400, 50 L.Ed.2d 339 (1976) (per curiam) (“ ... [I]f a venireman is improperly excluded, even though not ... [irrevocably] committed [to vote against the death penalty], any subsequently imposed death penalty cannot stand.”). See also Batson v. Kentucky, — U.S. -, 106 S.Ct. 1712, 1718, 90 L.Ed.2d 69 (1986) (“The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.”)
For these reasons, we cannot afford to allow Salamone’s conviction to stand as a final product of our criminal justice system.
. Like the majority, I do not reach the issue of whether there has been a Fifth Amendment due process violation.