This argument sounds so hokey. Similar to the non-exectation-of-privacy-when-using-tor argument, https://news.ycombinator.com/item?id=11166991 The US legal system appears as a special case
It has to be - our legal system is based on rule of law. You often see lawyers go after First Amendment defenses because the First Amendment is legally part of the constitution, and thus overrides any and all other laws. Of course, a judge has to agree with the argument - and considering when the Bill of Rights was written, that argument is likely going to be a bit roundabout given the progress we've made in ~250 years.
Not sure what you're saying, what has to be?
Any modern argument based on laws written 250 years ago is going to necessarily be roundabout. If the problem was straightforward, there would probably be established case law addressing it.
Why do you say "a judge has to agree with the argument" -- surely they don't need to agree with hokey arguments.