dissenting.
Because, contrary to the court, 18 U.S.C. § 921(33)(A)(ii) (2000) requires violation of a domestic violence statute as a predicate element, I dissent. Section 922(g) makes it unlawful for any person who has been convicted of a misdemeanor crime of domestic violence to possess a firearm. A misdemeanor crime of domestic violence is defined in Section 921(33)(A)(ii) as a misdemeanor under federal or state law which “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a *1374child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.” (Emphasis added).
Statutory construction begins with the plain language of the statute. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). The plain language here clearly and unambiguously requires that the misdemeanor “[have], as an element,” a domestic component. The court should look beyond the plain meaning of the statute only if the language is ambiguous or if a literal interpretation would frustrate the purpose behind the statute. Bob Jones Univ. v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983). Neither is the case here.
Nevertheless, the purpose of the statute is consistent with a literal reading. The purpose is to prevent people convicted of crimes of domestic violence from possessing a firearm. 142 Cong. Rec. D927-02, *D928 (1996). Had White been convicted under Virginia’s domestic violence statute, he would have been prevented from possessing a firearm. The court relies on United States v. Barnes, 295 F.3d 1354 (D.C.Cir.2002), for the proposition that to adopt the literal construction would render the law a nullity in a majority of states. That may be a reason for Congress to rewrite the law, but no such argument was presented to us. It is also irrelevant because Virginia has a domestic violence statute.
The court looks to congressional intent and concludes that the statute should not be given its literal meaning. But if Congress had intended for administrative officials to probe the facts of an underlying misdemeanor to determine the domestic relationship of the victim, it could easily have said so. Simply replacing “has as an element” with “the underlying facts show,” or similar language, would have been sufficient.
In the case before us, White was charged with both misdemeanor assault and misdemeanor domestic violence and acquitted of the domestic violence charge. So the charge which had domestic violence as an element was dismissed. In the face of the long standing injunction to construe penal statutes narrowly, Mourning v. Family Publ’n Serv., Inc., 411 U.S. 356, 375, 93 S.Ct. 1652, 36 L.Ed.2d (1973), it is perverse to base a dismissal from the service on the very charge not proved before a judge and jury, but resurrected by an administrative judge.