David B. Kopel, Independence Institute and University of Denver College of Law, has published Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer. Here is the abstract.
Download the paper from SSRN at the link.
Illinois Senator and attorney Lyman Trumbull wrote the Thirteenth Amendment, outlawing slavery in the United States, and giving Congress the power to remove all badges of servitude “by appropriate legislation.” The appropriate legislation which Trumbull then introduced was the Civil Rights Act of 1886, the foundational civil rights statute in the United States. He also wrote the First Freedmen’s Bureau Bill, to protect the civil rights of freedmen nationally. The bills were the first federal legislation to protect Second Amendment rights.
Later, he brought Second Amendment test cases to the U.S. Supreme Court (Presser v. Illinois in 1886 ) and the Illinois Supreme Court (Dunne v. Illinois in 1879). These Second Amendment cases involved labor rights, in particular, the rights of organized groups of working men to defend themselves from company goons and other violence. The most famous case of the last part of Trumbull’s career was also a labor case, In re Debs; there, he brought a habeas corpus case to the Supreme Court in support of the labor leader Eugene Debs, who had defied a federal court injunction against continuing to encourage a railroad strike.
Trumbull was not a particularly “pro-Second Amendment” person. Other rights in the Constitution, such as habeas corpus, interested him much more. His legislation and litigation for the Second Amendment were derivative of the great cause to which he was devoted: “a fair chance” for “the poor who toil for a living in this world” — as Clarence Darrow remembered him.
This article examines Trumbull’s career as a lawyer and legislator. It pays particular attention to the themes which explain why he became involved in Second Amendment issues.
Part I of this article provides an overview of Trumbull’s political philosophy, as it remained mostly constant from his early days as an Andrew Jackson Democrat to Republican Senator to Populist. Part II then begins the narrative of Trumbull’s life, from earliest days through his service in the Illinois state legislature, on the Illinois Supreme Court, and as the leading anti-slavery advocate of that state. Part III details Trumbull’s three terms as United States Senator from Illinois — defending civil liberties during the war, authoring the first statute which freed slaves, the Thirteenth Amendment, and then major Reconstruction legislation. Finally, Part IV examines Trumbull’s career after the Senate, as a Chicago lawyer from 1873 until his death in 1896.
Trumbull was one of the “Founding Sons” who in the mid-19th century first eliminated slavery, and then set up the constitutional and statutory structures for national protection of civil rights. This structure continues to be vitally important today. So studying the full sweep of Trumbull’s political and legal career is important for the same reason as is studying the other Founding Sons, such as Salmon Chase, Jonathan Bingham, or Thaddeus Stevens. Trumbull has been the subject of three biographies, the first in 1913 by his friend the newspaper writer Horace White, and the last in 1979. None of these general biographies, however, were legal scholarship. Given Trumbull’s tremendous importance in the development of American law, this Article aims to fill that gap.
A second purpose of this Article is to explicate Trumbull’s heretofore-overlooked position as the leading pro-Second Amendment legislator and lawyer of the nineteenth century — or at least the part of the century after Founders such as Thomas Jefferson and James Madison had departed. Second Amendment rights were not among Trumbull’s major political or legal interests. So why did he end up doing so much on behalf of the Second Amendment? This Article suggests that the answer was Trumbull’s lifelong devotion to the rights of workers.
Download the paper from SSRN at the link.