Replace word "bitcoins" by "potatoes" and any judge will figure out on the spot what to do.
Potatoes aren't a digital construct thinly traded only on unregulated exchanges which hasn't yet been defined by FinCEN or any other regulatory body. I do agree that Bitcoin will need to be regulated eventually. It simply can't co-exist with fiat currencies under existing laws without regulation and definition.
Still I think this is a case of people wanting to have their cake and eat it to. Either Bitcoin is outside of regulation and statutes or it isn't. It can't be "kinda" under the law. If it is regulated that means tight AML, trade reporting to IRS, regulatory requirements for handling Bitcoins, licensing (VA requires a $500K bond to be a money transmitter for example), etc.
It can't be under the law when you want something and then outside regulation all the other times. It is all or nothing baby.
Personally like it or not, I think on a long enough time line we will be in the "all" category.