dissenting:
The majority evades the issue presented in this case. It then, mistakenly in my view, decides the case on a basis not considered by the administrator or the Superior Court which reviewed his decision.1
Since D.C.Code 1973, § 22-3217(a) applies, inter alia, to a “sawed-off shotgun” it perforce excludes an unaltered shotgun. It is little wonder that the majority retreats to another basis for reaching its result. The mechanical and hence legal difference between these two weapons has long been recognized. The short-barreled shotgun is readily concealable while being carried by someone. At close range it has grisly capability. This is not to say that an unaltered shotgun is a benign object, but the differences between the two are so stark as to be universally recognized. See, e. g., D.C.Code 1973, § 22-3214 (“No person shall within the District of Columbia possess any . sawed-off shotgun . . . .”). This provision has strikingly similar descriptive language to § 22-3217(c); D.C.Code 1978 Supp., § 6-1802(15) & (16) and 18 U.S.C. § 921(a)(5) & (6) (definition of a “shotgun” and a “short-barreled shotgun.”).
The administrator ruled that this unaltered shotgun came within the definition of a “dangerous article” because he deemed it to be a “weapon such as pistol, machine gun, sawed-off shotgun, blackjack, slingshot, sandbag, or metal knuckles” — the lan*189guage of § 22-3217. The Superior Court affirmed that ruling on the appeal to it by addressing the same — and no other — question.2 The .error is so clear that nothing more need be said on the point. The majority implicitly recognizes that error by their strained effort to find another basis to uphold the administrator.
The thrust of my dissent is on a more important point. The majority finds it permissible to shift legal ground on the thesis that a trial court’s judgment can be affirmed on a legal basis not relied on by it. See the majority opinion at 185 n. 6. It is not the validity of that theorem, but its application to this case where the majority goes awry. But compare D. T. Corporation & 4934 Inc. v. D. C. Alcoholic Beverage Control Board, D.C.App., 407 A.2d 707 (1979) for proper application of the rule.
The rule that a trial court judgment can, on review, be sustained on any available legal theory, but an administrative agency decision must stand or fall on the basis used by the agency is axiomatic. See S. E. C. v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943). The District of Columbia expressly adopted this rule in Simpkins v. Brooks, D.C.Mun.App., 49 A.2d 549 (1946) and has reaffirmed its dedication to the doctrine in the recent past. See, e. g., Capitol Hill Restoration Society v. Zoning Commission, D.C.App., 380 A.2d 174,185 (1977); Silverstone v. District of Columbia Board of Zoning Adjustment, D.C.App., 372 A.2d 1286, 1287-88 (1977).
The rule established by S. E. C. v. Chenery Corp., supra, is fairly simple and straightforward.
The rule relates to the issue of whether to remand or to affirm in a given situation, depending upon whether the decision-maker is a judge or is a jury. If the decision-maker is a judge, then regardless of the reasoning employed or the law applied to reach the decision, it will be affirmed so long as a plausible ground for affirmance exists. However, where the decision-maker is a jury, then the appellate court must remand for the jury to make a decision, even if a conceivably correct ground for the decision exists. [See Ibn-Tamas v. United States, D.C. App., 407 A.2d 626, 651 (1979) Nebeker, J., dissenting.]
In addition, Chenery states the controlling rationale for this and its applicability to administrative decisions:
The reason for this rule is obvious. It would be wasteful to send a case back to a lower court to reinstate a decision which it had already made but which the appellate court concluded should properly be based on another ground within the power of the appellate court to formulate. £ut it is also familiar appellate procedure that where the correctness of the lower court’s decision dépends upon a determination of fact which only a jury could make but which has not been made, the appellate court cannot take the place of the jury. Like considerations govern review of administrative orders. If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment. For purposes of affirming no less than reversing its orders, an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency. [S. E. C. v. Chenery Corp., supra, 318 U.S. at 88, 63 S.Ct. at 459 (emphasis added.)]
The majority has failed to recognize that this is not an appeal from a judgment of the Superior Court rendered by virtue of its usual jurisdictional headwater — D.C.Code 1973, § 11-921. Rather the Superior Court *190was acting in an appellate — or review — capacity. It had before it an “appeal” from a decision of the property clerk. See § 22-3217(d)(3). The property clerk was the administrator before whom the appellant’s claim for return of the weapon was filed pursuant to subsection (d)(1). The property clerk was charged to “hear and receive evidence” on the claim and to “reduce his decision to writing” by subsection (d)(2). This is a classic administrative review of a type.of a contested case3 by the Superior Court in its rather unique role as an appellate tribunal under subsection (d)(3).
I am confident that my colleagues regret that they have had to retreat to such inap-posite precedent as Lewis v. Aderholt, D.C. App., 203 A.2d 919 (1964), Carroll v. Heidenheimer, D.C.Mun.App., 44 A.2d 71 (1945) and United States v. Wright, 197 U.S.App. D.C. -, 610 F.2d 930 (D.C.Cir.1979), in order to wedge this case into trial court, rather than agency-type review. Those cases are detinue or replevin actions or disputes as to title to property where no statute provided for judicial review of the property clerk’s decision that the property must be confiscated and destroyed. Here such review is provided by “appeal” to the Superior Court.
I respectfully submit, therefore, that we are not free to seek and find another basis for affirmance in. this case. We must confine ourselves to the administrator’s basis for decision. If that decision was in error either the Superior Court or this court must reverse and remand for appropriate disposition. I would require return of the weapon to appellant.
. I will not dwell on the merits of the majority opinion, for it is not legally germane. However, if one reads D.C.Code 1973, § 6-1875 in conjunction with D.C.Code 1978 Supp., § 6-1801, it is inescapable that the Firearms Control Regulation Act of 1975 (see D.C.Code 1978 Supp., § 6-1801 et seq.) was aimed at those persons residing or in transit within the District of Columbia. Section 6-1801 enunciates in plain language the findings and purpose of the Firearms Control Act which reads as follows:
The Council of the District of Columbia finds that in order to promote the health, safety and welfare of the people of the District of Columbia it is necessary to:
(1) Require the registration of all firearms that are owned by private citizens;
(2) Limit the types of weapons persons may lawfully possess;
(3) Assure that only qualified persons are allowed to possess firearms;
(4) Regulate deadly weapons dealers; and
(5) Make it more difficult for firearms, destructive devices, and ammunition to move in illicit commerce within the District of Columbia. (Sept. 24, 1976, D.C.Law 1-85, § 2, 23 DCR 2464.)
The appellant is a resident of Virginia. He was not in transit within the District of Columbia. He merely entrusted his shotgun to his friend, not his friend’s wife, for a singular purpose — to be used in sports activity with his friend’s son, in Maryland. The mutually understood purpose did not contemplate its use within the borders of the District of Columbia. The Act was not designed to cover these unusual circumstances.
Moreover, the weapon was not surrendered to the police in the way the Act contemplates. It was not shown to have been “unloaded and securely wrapped in a package” as required by D.C.Code 1973, § 6-1875. It was handed to police by an angry wife who had summoned them because of her husband’s behavior.
. The appellee argues that the language “any weapon such as a . . . sawed-off shotgun,” in § 22-3217(a) permits including an unaltered shotgun within the statute’s definition. But as observed the two are mechanically and legally different. By the appellee’s argument, a rubber band or a gold ring would be a dangerous article. The former, as any school boy knows, when stretched between two Angers, can make an effective slingshot. A ring can be as harmful as metal knuckles in hand combat.
. Cf. Chevy Chase Citizens Association v. District of Columbia Council, D.C.App., 327 A.2d 310 (1974) (en banc) and Citizens Association of Georgetown v. Washington, D.C.App., 291 A.2d 699 (1972).