concurring.
Under our Constitution and legal tradition, judges are supposed to apply the law enacted by the legislature based on what a statute says, not based on whether the judges believe it “makes sense” to apply the statute to the case at hand or instead feel it would be “unfair” to do so. This Court’s decision in Heard v. State, 261 Ga. 262 (403 SE2d 438) (1991), departed from this norm. The Heard majority overruled multiple precedents to hold that OCGA § 16-3-21 (b) (2), which says clearly that a criminal defendant cannot assert self-defense if he used force while “committing ... a felony,” applies to one type of felony — felony murder — only when the court thinks “it makes sense to do so” and it is not “unfair and illogical.” Heard, 261 Ga. at 263 & n. 3.
Deciding this case under Heard’s misbegotten approach, it “makes sense” and seems “fair” enough to me, and to the other judges on this Court, that OCGA § 16-3-21 (b) (2) precluded Smith from claiming, or having the jury instructed, that the felony murder *776he committed in the course of committing a felony drug deal could be justified by self-defense. I therefore concur with Division 2 of the majority opinion (as well as the rest of the opinion).6 Given the resolution of Smith’s Heard argument against him, the Court need not decide whether Heard is good law, and the State has not asked us to reconsider that precedent in this case. However, before Heard becomes any more entrenched in the Georgia Reports, I think it is important to point out its dubious underpinnings.
OCGA § 16-3-21 (a) establishes one of this State’s justification defenses to criminal charges, allowing the use of force, sometimes even deadly force, in the defense of oneself and others. However, subsection (b) (2) of the statute then says, in plain English, that “[a] person is not justified in using force under the circumstances specified in subsection (a) . . . if he . . . [i]s attempting to commit, committing, or fleeing after the commission or attempted commission of a felony.” Reading this law, one would think that a defendant who was “committing ... a felony” when he used deadly force could not claim, or receive a jury instruction, on self-defense. And because the statute refers to “a felony,” excluding no type or class of felony, if in committing a felony the defendant used force to cause the death of another person, thereby committing a felony murder, see OCGA § 16-5-1 (c), the law would not allow him to claim self-defense.
In accordance with this plain statutory language, this Court repeatedly held before Heard that “[s]elf-defense is not a defense to felony murder.” Ely v. State, 244 Ga. 432, 432 (260 SE2d 345) (1979). Accord Hall v. State, 259 Ga. 243, 244 (378 SE2d 860) (1989) (“The trial court’s instructions on self-defense were a correct and sufficient statement of Georgia law, which did not prevent the jury from considering the appellant’s claims of self-defense as to all of the charges against him except felony murder, to which offense self-defense is no defense.”); Smith v. State, 235 Ga. 327, 329 (219 SE2d 440) (1975) (calling defense counsel’s argument that the appellant had a right to use his gun in self-defense “a gross misstatement of the law as applied to the evidence in the case,” and explaining, “[t]he appellant was attempting to commit a felony at the time the victim’s companion pulled out his knife. Under these circumstances the appellant was not legally justified in using a weapon to defend himself.” (citing the predecessor to OCGA § 16-3-21 (b) (2)).
*777The majority opinion in Heard — Justices Weltner and Smith dissented in relevant part — started by quoting the language of OCGA § 16-3-21 (b) (2). See 261 Ga. at 262. But the majority then claimed that the legislature did not mean what it had said — that “a felony” means “a felony” — instead asserting that the General Assembly “did not intend that section to preclude the defense of justification in all felony murder cases.” Id. (emphasis in original).
The Heard majority did not base this assertion on any analysis of the statutory language or other canons of statutory construction, such as a need to avoid a constitutional violation. It simply held that statute would no longer apply “where there is sufficient evidence of a confrontation between the defendant and the victim, or other circumstances which ordinarily would support a charge on justification,” as may exist where the predicate felony is aggravated assault. Id. at 262-263. Henceforth, OCGA § 16-3-21 (b) (2) would apply only where judges decided that “it makes sense to do so, for example, to a burglar or robber who kills someone while fleeing.” Id. at 263. The majority found it particularly “unfair and illogical to deny a defendant the defense of justification against a felony murder charge merely because of his status as a convicted felon in possession of a firearm,” or, in what it deemed “a more dramatic, though analogous example,” to deny a defendant “a charge on self-defense if he happened to have 1.1 ounces of marijuana in his pocket when he killed someone while trying to defend himself.” Id. at 263, n. 3. Our contrary precedent was overruled. See id. at 263 (specifically overruling Hall and Ely).
The Heard majority’s view of when self-defense may be raised against a charge of felony murder is reasonable, perhaps even wise. Indeed, if I were a legislator drafting or voting on a self-defense statute, I might favor one that allows the defense to be raised in felony murder cases when the underlying felony is passive and incidental,7 like the mere possession of illegal drugs, but prohibits a self-defense claim where the predicate felony often involves danger and violence, like felony drug dealing.
Of course, other policymakers might decide that felony murder liability should be imposed very broadly to deter and punish felonious conduct that proximately causes death, and thus to prohibit claims of self-defense even when, for example, a convicted felon *778chooses to arm himself and that inherently dangerous conduct leads to someone being killed. There would be nothing unconstitutional about that policy decision, since this Court has long held “the overbreadth of the felony-murder statute to be a policy, rather than a Constitutional, problem.” McKenzie v. State, 248 Ga. 294, 295 (282 SE2d 95) (1981), overruled on other grounds, O’Kelley v. State, 284 Ga. 758, 768 (670 SE2d 388) (2008). See also Shivers, 286 Ga. at 428 (Nahmias, J., concurring specially) (discussing “the General Assembly’s determination that it is inherently dangerous for a convicted felon to possess a gun” — a crime that is punished by a prison term of one to five years even if it does not injure anyone).
But whether the policy established by the Heard majority is good or bad is not the point, because it is not the policy established by the body that is constitutionally entitled to establish the laws of Georgia. See Ga. Const, of 1983, Art. Ill, Sec. VI, Par. I (“The General Assembly shall have the power to make all laws not inconsistent with this Constitution, and not repugnant to the Constitution of the United States, which it shall deem necessary and proper for the welfare of the state.”). If such laws are not unconstitutional, the obligation of this Court is to apply them, whether we like them or not. As Chief Justice Russell put it, in determining constitutional and other questions, “the courts are not permitted to concern themselves with the wisdom of an act, or to apply or obtrude the personal views of the judges as to such matters.” Shadrick v. Bledsoe, 186 Ga. 345, 350 (198 SE 535) (1938). Although Heard did not hold OCGA § 16-3-21 (b) (2) unconstitutional in any way, we have recognized that the decision “abolish[ed]” the statute to some extent. Williams v. State, 274 Ga. 371, 372 (552 SE2d 814) (2001) (explaining that “Heard did not abolish OCGA § 16-3-21 (b) (2) altogether”). That is something this Court may not do.
Heard comes from an era in which this Court cut back on the scope of the felony murder statute in several ways inconsistent with its text, history, and precedent. See, e.g., Ford v. State, 262 Ga. 602, 603 (423 SE2d 255) (1992) (acknowledging that OCGA § 16-5-1 (c) “does not specify which felonies may predicate a felony murder conviction,” but then holding that the statute applies only to a felony “that is dangerous per se, or ‘which by the attendant circumstances, create(s) a foreseeable risk of death,’ ” and also deciding that the felony of possession of a firearm by a convicted felon is not dangerous per se (citation omitted)); State v. Crane, 247 Ga. 779, 779 (279 SE2d 695) (1981) (holding that the word “causes” in the felony murder statute requires not proximate causation, but that the victim’s death be “caused directly” by one of the parties to the underlying felony), overruled by State v. Jackson, 287 Ga. 646, 660 (697 SE2d 757) (2010). See also Shivers, 286 Ga. at 425-428 (Nahmias, J., concurring *779specially) (discussing problems with Ford’s textual and historical analysis and its view of the offense of possession of a firearm by a convicted felon). Unlike Ford, the holding in Heard has not been deeply embedded in our law; it has been cited infrequently and has never resulted in a conviction being reversed on appeal. Even in Heard itself, after holding that the trial court had erred under (or, more precisely, in not predicting) this Court’s novel interpretation of OCGA § 16-3-21 (b) (2), the majority held that the error was harmless because Heard’s felony murder conviction had been merged into his conviction for malice murder. See 261 Ga. at 263.
Decided March 23, 2012. Brian Steel, for appellant. Patrick H. Head, District Attorney, Gregory L. Epstein, John R. Edwards, Assistant District Attorneys, Samuel S. Olens, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Brit*780tany N. Jones, Assistant Attorney General, for appellee.*779Finally, it should be recognized that Heard’s disregard for the language of OCGA § 16-3-21 (b) (3) is not needed to avoid the applications of the statute that the Heard majority felt would be most “unfair.” Under the felony murder statute, the predicate felony must be the proximate cause of the victim’s death. See Jackson, 287 Ga. at 660. If a defendant merely “happened to have 1.1 ounces of marijuana in his pocket when he killed someone while trying to defend himself,” Heard, 261 Ga. at 263, n. 3, then the drug possession felony would have no causal connection to the death and could not be the basis of a felony murder conviction, without respect to any claim of self-defense. As the majority recognizes, see Maj. Op. at 771, Ford holds that “possession of [a] firearm by [a convicted felon], alone, under . .. circumstances which involve no assault nor any other criminal conduct, is not a felony upon which a felony murder conviction may be obtained.” 262 Ga. at 603-604. Likewise, because self-defense may be a defense to a felony charge of aggravated assault, and where that defense is valid it means the accused was “not engaged in any crime at all,” Maj. Op. at 771 (citing cases), a felony murder conviction could not be based on such a non-existent predicate felony. See Heard, 261 Ga. at 264, n. 4 (Weltner, J., dissenting in part). There is no need to warp the self-defense statute to reach the same result.
It took almost 30 years for this Court to overrule our patently incorrect decision in Crane. For the reasons discussed above, if we are asked to overrule Heard, the request would require serious consideration.
I am authorized to state that Presiding Justice Carley and Justice Hines join in this concurrence.
Indeed, I think Smith’s Heard claim is easier to resolve than the majority opinion suggests. Smith does not only need to show error under Heard, he must show “plain error,” because he did not object to the jury charge at trial based on Heard’s interpretation of OCGA § 16-3-21 (b) (2), instead complaining only that the jury charge was unconstitutional, an issue he does not raise on appeal. See OCGA § 17-8-58 (b); State v. Kelly, 290 Ga. 29, 32-33 (718 SE2d 232) (2011).
I use the term “passive” felony rather than “status” felony, a term that has been misused in Heard and other felony murder cases. See Shivers v. State, 286 Ga. 422, 427-428 (688 SE2d 622) (2010) (Nahmias, J., concurring specially). True “status offenses” (for example, the crime of “being a felon”) are unconstitutional because they lack an “actus reas,” whereas crimes like possession of a firearm or illegal drugs require the offender to act to obtain and possess the prohibited item - acts that may he criminally punished. See id.